Citation Nr: 18140783 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 14-06 366 DATE: ORDER Entitlement to service connection for cardiomyopathy is granted. Entitlement to service connection fora a left knee condition is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a back condition is denied. FINDINGS OF FACT 1. The preponderance of evidence indicates the Veteran’s cardiomyopathy and sleep apnea are related to active service. 2. In giving the benefit of the doubt, the Board finds that service connection is warranted for a left knee condition. 3. The evidence of record fails to demonstrate that a back condition is etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for service connection for cardiomyopathy have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for a left knee condition have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for service connection for a sleep apnea have been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. 4. The criteria for service connection for a back condition have not been met. 38 U.S.C. §§ 1101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to November 1994. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and the appellant testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in February 2017. A transcript of the hearing is of record. These matters were previously before the Board in September 2017 when they were dismissed due to the death of the Veteran in July 2017. Since that time, the appellant has become the Veteran’s substitute in that appeal. Service Connection In general, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection also may be established on a secondary basis for: (1) a disability that is proximately due to or the result of a service-connected disease or injury; or, (2) any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. §§ 3.310(a), (b); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Certain chronic diseases, including cardiovascular-renal disease and arthritis, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 38 C.F.R. §§ 3.307, 3.309(a). The Board has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Entitlement to Service Connection for Cardiomyopathy The appellant contends that the Veteran’s cardiomyopathy is related his active military service. The Board concludes that, while the Veteran has cardiomyopathy, which is a chronic disease under 38 C.F.R. § 3.309(a), it did not manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101(3), 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Private treatment records show the Veteran was not diagnosed with cardiomyopathy many years after his separation from service and years outside of the applicable presumptive period. As such, service connection for a chronic disability cannot be granted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309; see also Walker, 708 F.3d 1331. Service connection for cardiomyopathy may still be granted on a direct basis. The Board concludes that the preponderance of the medical evidence supports finding that the Veteran’s cardiomyopathy is related to active service. Although the Veteran’s service treatment records show no in-service complaints of heart issues and his November 1994 separation examination indicates he underwent a normal heart evaluation, the Veteran underwent a May 1992 electrocardiography (EKG) that was abnormal, as it showed inverted T waves, and a June 1992 echocardiogram that was normal aside for mild LV dilation. With regard to a nexus, an August 2009 letter from the Veteran’s private physician indicates that that the Veteran has a history of anemia, hypertension, and cardiomyopathy, as well as a history of being exposed to radiation, asbestos, and lead while inservice. The physician opined, “It is certainly possible that a lot of his medical problems that are noted above may have been aggravated or possibly even caused by his exposures and experiences in the service.” An April 2012 private opinion indicated that “it is certainly possible” that the abnormal findings of the in-service EKG and echocardiogram were early signs of cardiomyopathy, which subsequently developed. The Board finds these opinions are insufficient to establish entitlement to service connection in this case, as they are speculative. See Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (holding that a speculative medical opinion provides neither positive nor negative support for a veteran’s claim); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings such as “may or may not have been”). An April 2015 private opinion also indicated that more likely than not, the Veteran’s cardiomyopathy existed in service based on the abnormal findings of the 1992 EKG. The Board finds this opinion inadequate, as there is no evidence that the Veteran’s claims file, in addition to the “medical records from [the Veteran’s] active duty Navy time” were reviewed. In May 2018, the Board requested a medical opinion regarding a nexus between the Veteran’s cardiomyopathy and active service. A subsequent May 2018 opinion indicated that based on the findings of the May 1992 EKG and June 1992 echocardiogram, the Veteran’s cardiomyopathy was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The Board finds the May 2018 medical opinion to be probative, as it is based on objective findings as shown by the record, a thorough review of the evidence of record, and the May 2018 examiner provided a rationale for the opinion given, which is consistent with the facts as found by the Board. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Resolving reasonable doubt in the Veteran’s favor, the Board finds that cardiomyopathy was incurred in active service; thus, the criteria for service connection for cardiomyopathy have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to Service Connection for a Back Condition The Veteran has current diagnoses for several back conditions, including degenerative disc disease. Private treatment records show the Veteran was not diagnosed with arthritis many years after his separation from service and years outside of the applicable presumptive period. As such, service connection for a chronic disability cannot be granted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309; see also Walker, 708 F.3d 1331. Service connection for a back condition may still be granted on a direct basis. The Board concludes that the preponderance of the medical evidence is against finding that the Veteran’s back condition was related to active service. Service treatment records indicate the Veteran was treated on several occasions with complaints of low back pain, diagnosed as mechanical low back pain and low back strain. However, after reviewing the claims file, a December 2013 VA examiner opined that the Veteran’s back condition was less likely than not related to service. The examiner rationalized that the last report of back pain occurred in 1994, which represented about a 19-year time gap from the time of the examination and thus, did not establish a longitudinal trend. The examiner noted that private treatment reports showed a history of multiple back injuries and a moving vehicle accident. Accordingly, the examiner determined it was less likely than not that the Veteran’s back condition was incurred in or caused by service. A July 2009 private medical opinion indicates that the Veteran’s back injury was most likely related to service. This opinion is inadequate, as it appears to be based on the Veteran’s self-reports and there is no evidence of a review of the claims file. As far as an August 2009 private physician letter purports to be a medical opinion, the Board gives it little weight, as it is confusing. The Board notes that a July 2015 private opinion indicates that the Veteran’s back condition was “aggravated or caused by the service-connected back condition.” The Board gives this opinion little probative weight, as it is also confusing. The Board notes that the Veteran is not service connected for any back condition. The Board notes that the Veteran, as demonstrated in his testimony, might have sincerely believed that his back injury was related to active service. However, the most probative clinical etiology opinion with regard to the Veteran’s claimed condition is against such a finding. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to the complexity of vertigo for VA purposes. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The preponderance of the evidence weighs against a grant of service connection for the Veteran’s back condition on a direct or presumptive basis. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and service connection must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to Service Connection for a Left Knee Condition The Board concludes that the medical evidence supports finding that the Veteran’s left knee condition was related to active service. Service treatment records indicate the Veteran was treated on several occasions with complaints of left knee problems diagnosed as patellofemoral syndrome. Private treatment records show the Veteran was not diagnosed with patellofemoral arthrosis many years after his separation from service and years outside of the applicable presumptive period. As such, service connection for a chronic disability cannot be granted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309; see also Walker, 708 F.3d 1331. A December 2013 VA examiner diagnosed status post left knee meniscectomy with residual scarring, but did not provide an opinion regarding etiology. The Veteran did not undergo a VA examination. However, a June 2015 opinion provided by the Veteran’s private physician indicates that the Veteran’s left knee arthrosis was most likely related to in-service injuries. As much as a February 2012 treatment note purports to be a medical opinion, it indicates that the Veteran’s left knee injury began in the military. Although there are questions regarding the adequacy of these opinions, the Board finds, in affording the benefit of the doubt, that service connection is warranted for a left knee condition. Entitlement to Service Connection for Sleep Apnea The Veteran has diagnoses for sleep apnea; however, service records document no complaints, treatment, or diagnoses of the condition in service. In a March 2017 letter, the Veteran’s private physician noted that the Veteran was treated for anemia and fatigue in service and that he underwent an abnormal sleep study that diagnosed him with sleep apnea. The physician opined “there is a 50/50 chance that his obstructive sleep apnea occurred during his time of service in the military.” Resolving reasonable doubt in the Veteran’s favor, the Board finds that sleep apnea was incurred in active service; thus, the criteria for service connection for sleep apnea have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel