Citation Nr: 1754618 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-23 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for atrial fibrillation with hypertensive heart disease (claimed as a heart condition). REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Watson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from March 1966 to February 1970. This matter comes before the Board of Veterans' Appeals on appeal from a rating decision that the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island issued in September 2012. In August 2013, the Board remanded the Veteran's claim for service connection for atrial fibrillation with hypertensive heart disease. In May 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. In July 2015, the Board remanded the Veteran's claim for service connection for atrial fibrillation with hypertensive heart disease to associate more medical records and provide the Veteran another VA examination. In March 2016, the Board last remanded the Veteran's claim to develop it further by addendum VA examination, including VA examinations in April 2016 and October 2016, respectively. On remand, two VA examiners examined the Veteran's medical records collected to produce opinions to fulfill the Board's remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. Neither atrial fibrillation nor hypertensive heart disease, including hypertension, onset during the Veteran's active service; nor within the first post-service year, and neither is otherwise related to any event, disease or injury in service 2. Atrial fibrillation and hypertensive heart disease, including hypertension, are not caused or aggravated by service-connected prostate cancer. CONCLUSION OF LAW The criteria for service connection for atrial fibrillation with hypertensive heart disease (claimed as a heart condition), are not met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Service Connection To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). There can be no valid claim absent proof of a present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Additionally, where a veteran served ninety days or more of active service, and cardiovascular-renal disease, including hypertension, becomes manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1112 , 1113, 1137; 38 C.F.R. §§3.303, 3.304, 3.307, 3.309(a). If nothing manifests itself within one year of service, the Veteran may yet establish service connection for a recognized chronic disease through showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. Continuity of symptomatology requires the chronic disease have manifested in service. 38 C.F.R. § 3.303(b). Manifesting in service means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. §3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. §3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA must consider all pertinent medical and lay evidence to evaluate a claim for disability benefits. 38 U.S.C.A. § 1154(a). Lay evidence can be competent and sufficient to diagnose a condition when (1) a layperson is competent to identify the medical condition, (2) he or she reports a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a medical professional's later diagnosis. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board may not judge lay evidence incredible merely because contemporaneous medical evidence does not accompany it. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the Board may consider and weigh lack of contemporaneous medical evidence against a Veteran's lay statements. Id. Further, the Board may draw a negative inference from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). First, to analyze the Veteran's claim under the theory of direct service connection, he has shown by evidence of record that he suffers a present atrial fibrillation or hypertensive heart disease disability to meet the first element. His May 2012 VA examiner noted a diagnosis of hypertensive heart disease from 1985; and another of atrial fibrillation from 2005. Additionally, his physician in May 2008 by letter identified atrial fibrillation and hypertension. Moreover, his 2014 VA examiner recognized that the "veteran has a diagnosis of hypertension, post military service." Likewise, his October 2016 VA examiner noted that the "Veteran has a current diagnosis of hypertensive heart disease..." Thus, the first element is met. Second, the Veteran has shown an event in service because he was exposed to a herbicide agent. The Veteran contends the treatment for his service-connected prostate cancer has caused or aggravated his atrial fibrillation or hypertensive heart disease disability. Thus, the second element is met. Third, the question remains whether a nexus links the Veteran's current atrial fibrillation or hypertensive heart disease disability to his service-connected disabilities, including but not limited to his service-connected prostate cancer and the treatment for prostate cancer that deprived the Veteran of androgens. Under the theory of direct service connection, nothing in the Veteran's service treatment records suggests hypertensive heart disease or atrial fibrillation manifested during his service or within one year after discharge from active service. However, under the theory of secondary service connection, the Veteran argues an herbicide agent caused his current atrial fibrillation or hypertensive heart disease disability because the time it onset was near in time to his prostate cancer having onset. 38 C.F.R. §3.310. At his hearing before the VLJ, the Veteran testified that the heart condition started just before the prostate condition. This and his other statements show he perceived or diagnosed his heart condition near in time to his prostate cancer onset, thus suggesting possible causation or common etiology, in his lay opinion. While the Veteran is competent to testify to lay facts he has observed during or after service, such as the onset of his heart condition, he is not competent to opine a causal relationship between herbicide exposure and atrial fibrillation or hypertensive heart disease; because determining that requires medical expertise. Jandreau, 492 F.3d at 1377. Thus, his statements concerning a medical nexus are neither competent nor entitled to weight. The Board finds that weight of the competent and probative evidence demonstrates that the atrial fibrillation with hypertensive heart disease is not related to service and is not caused or aggravated by a service-connected disability, to include the service-connected prostate cancer. On VA examination in September 2015, VA examiner indicated that the Veteran had radical prostatectomy and radiation therapy for his prostate condition. The examiner stated that there is no evidenced based research that show radiation treatment for prostate condition leads to Atrial fibrillation at this time. The examiner also indicated that there is no clinical evidence that show that Atrial fibrillation can be aggravated by prostate cancer residuals at this time. The April 2016 VA examiner opined that hypertension "was less likely than not...incurred in or caused by the claimed in-service injury, event or illness..." because"...(t)here is no clinical evidence that attributes Agent Orange as etiology of hypertension." Following this, he opined that "(t)here was no evidence to suggest that his service connected prostate cancer residuals have aggravated his hypertension beyond its natural progression." Similarly, the October 2016 VA examiner explained that "high blood pressure is not a presumptive condition related to Agent Orange." As to aggravation, she described in detail no finding of aggravation as follows: "Veteran was on Cardizem and Toprol in May of 2012, and based on Dr. Oseghale's findings he had addition of digoxin, which is used to control rhythm and not blood pressure, which would indicate his BP was stable from 2012-2015, therefore no worsening of BP or aggravation of HTN by prostate cancer and its treatment regime." As a matter of fact-finding on remand, the Board finds the September 2015, April 2016 and October 2016 VA examiners competent to render such medical opinions due to their education, experience and credentials; and credible due to well-reasoned rationales as medical professionals. Thus, the Board lends great weight to their opinions relative to the lay evidence, and finds the evidence preponderates against finding a causal nexus under the theories of direct or secondary service connection, between the Veteran's atrial fibrillation and hypertensive heart disease disability and his active duty service, based on the competent and credible lay and medical evidence of record. Consequently, the Board finds the evidence does not warrant service connection for the Veteran's claimed disability directly or indirectly because the third element of service connection has not been met to show his service caused or aggravated it by a nexus. 38 C.F.R. §§ 3.303, 3.310. As to the Veteran's blood pressure while in service possibly indicating atrial fibrillation or hypertensive heart disease, the October 2016 examiner noted, according to his STRs, "page 25 of 41 reveals normal BP (blood pressure) 126/74. There is no evidence of elevated blood pressure while on active duty." Likewise, his STRs do not show continuous symptoms during or since service prior to the onset of atrial fibrillation or hypertensive heart disease, as previously described, decades later. Consequently, the theory of continuity of symptomatology cannot substantiate his claim for lack of evidence of reported, continuous symptoms since service. 38 C.F.R. § 3.303(b). Still, the Veteran and his Representative have essentially alleged the theory of secondary service connection, of "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury," that may substantiate the claim, so long as he or VA proffers competent and credible evidence, usually in the form of a medical opinion, to connect the Veteran's atrial fibrillation or hypertensive heart disease disability to his herbicide agent exposure or resulting treatments of disabilities resulting from such exposure. 38 C.F.R. § 3.310. Neither VA examiner on remand found medical literature to profess that atrial fibrillation or hypertensive heart disease arise etiologically from herbicide exposure, Androgen deprivation therapy, or any other medical evidence proffered or of record. For this reason, the October 2016 examiner stated that "(t)he condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service connected condition." As noted above, the VA examiner also concluded that the claimed condition was not aggravated by a service-connected disability. Lastly, the Board may not presume exposure to a herbicide agent, and the treatments for those disabilities that VA regulations presume arise from it, cause atrial fibrillation or hypertensive heart disease. As noted previously, the Veteran was exposed to an herbicide agent; and he suffers from service-connected prostate cancer for which his therapy deprives him of Androgen hormones. Nevertheless, the October 2016 VA examiner found the Veteran's heart disability does not relate to the Veteran's exposure because "(h)igh blood pressure is not a presumptive condition related to Agent Orange." See, e.g., 38 C.F.R. § 3.309(e). Moreover, she cited the American Cancer Society, to state that available medical literature shows "...the risk of high blood pressure, diabetes, strokes, heart attacks, and even death from heart disease is higher in men treated with hormone therapy, although not all studies have found this." She further stated that "(t)here have been studies to link HBP to Androgen deprivation therapy, but these studies have not been confirmed." This is why she stated that there is not medical knowledge sufficient to link "residuals of Prostate cancer and hormone deprivation therapy" to the Veteran's atrial fibrillation and hypertensive heart disease at this time according to medical science, in so far as presented in this case. The Board accepts her rationale as persuasive of the current state of medical knowledge. The benefit of the doubt rule does not apply because the evidence preponderates against the claim. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 . The Board denies the claim for these reasons. ORDER Entitlement to service connection for an atrial fibrillation with hypertensive heart disease disability is denied. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs