Citation Nr: 18141031 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 10-28 214 DATE: October 9, 2018 ORDER Entitlement to service connection for low back disorder, including lumbosacral strain; degenerative changes of lumbar spine with right sciatica, is denied. Entitlement to service connection for a heart condition, including Idiopathic cardiomyopathy with tachycardia, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for papillary carcinoma, status post thyroidectomy, is denied. FINDINGS OF FACT 1. A chronic low back disorder did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 2. The Veteran’s heart condition did not have onset during active service, did not manifest within one year of separation from active service, and was not caused by active service. 3. The Veteran’s hypertension did not manifest during service or within one year of separation from active duty service and was not caused by his service. 4. Residuals of papillary carcinoma, status post thyroidectomy, including hypothyroidism is not shown to have had onset during service; the current thyroid disorder, first diagnosed many years after discharge from active service, is unrelated to an injury, disease, or event of service origin. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disorder have not all been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a heart condition have not all been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. The criteria for service connection for hypertension have not all been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. 4. The criteria for service connection for residuals of papillary carcinoma, status post thyroidectomy, to include hypothyroidism, have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1981 to April 1988, with additional service in the Air Force Reserves. This matter comes before the Board of Veterans’ Appeals (hereinafter Board) on appeal from a November 2007 rating decision, which denied the Veteran’s claims of entitlement to service connection for a low back disorder, service connection for a heart condition, service connection for hypertension, and service connection for residuals of papillary carcinoma, status post thyroidectomy. He perfected a timely appeal to that decision. In his substantive appeal (VA Form 9), dated in June 2010, the Veteran requested a videoconference hearing. However, in a statement received in August 2014, he withdrew his hearing request. In October 2014, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in June 2018. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (a) (2017). “To establish a right to compensation for a present disability, 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”- the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis and heart disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active duty 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). This presumption only applies to periods of active duty and not to the Veteran’s ACDUTRA or IDT with Army Reserves and the Army National Guard of Virginia because, by definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. With regard to a claimant whose claim is based solely on a period of ACDUTRA or IDT, however, there must be some evidence that the condition was incurred or aggravated during the relevant period of service. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The Veteran can provide competent reports of factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Similarly, laypersons are competent to diagnose and provide nexus opinions to some extent, notably where the diagnosis or opinion is not of a complex nature. Id., see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for low back disorder The Veteran essentially contends that his low back disorder had its onset in service and he has continued to experience back pain since service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbosacral strain and degenerative arthritis of the spine, and evidence shows that he was treated for low back pain while on active duty in December 1986, the preponderance of the evidence weighs against finding that the Veteran’s lumbosacral strain with degenerative arthritis of the spine began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Private treatment reports show that the Veteran was not diagnosed with lumbar disc disease until January 2007, approximately 20 years after his separation from active service. While the Veteran is competent to report having experienced symptoms of chronic back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of lumbosacral strain with degenerative arthritis of the spine. The issue is medically complex, as it requires knowledge of musculoskeletal system. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Further, the June 2018 DBQ/VA examiner opined that the Veteran’s lumbar strain with degenerative disc and degenerative joint disease is not at least as likely as not related to an in-service injury, event, or disease, including low back pain in service. The examiner explained that the service treatment reports (STRs) only document one isolated episode of lower back pain in 1986 without sequelae, and there is a gap of 20 years in the claims file until treatment in 2006-07; therefore, the examiner stated that there was no showing of chronicity in this situation. The examiner further stated that the current lumbosacral spine degenerative disc disease and degenerate joint disease are more likely than not due to normal aging of the spine. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board has also considered the Veteran’s statements asserting a nexus between his DDD/DJD of the lumbar spine and his military service. As a lay person, however, the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of the medically complex disorder of degenerative disc disease. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011). Further, the etiology of the Veteran’s low back disorder is a medical etiological question involving internal and unseen system processes unobservable by the Veteran. As the record does not reflect that the Veteran has such understanding or ability to relate a low back disorder to his in-service complaints of low back pain, any contention regarding the claimed relationship does not have probative value. The Board places great weight upon the June 2018 opinion of the DBQ examiner, in part, because a competent medical opinion on how a low back disability is related to in-service finding of lumbar strain requires expert understanding of anatomy and the largely unseen, unobservable mechanics within the musculoskeletal system. For all of the above reasons, the preponderance of the evidence is against a finding that there is a nexus between the Veteran’s current back disability and his active service. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran’s claim for entitlement to service connection. 38 U.S.C. § 5107 (b) (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a heart/cardiovascular disability The Veteran essentially contends that he is entitlement to service connection for a heart condition which had its onset in service. The Veteran maintains that he developed a heart condition as a result of an episode of strep throat in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. Significantly, the Board notes that the Veteran’s service treatment records (STRs) for his period of active duty, from February 1981 to April 1988, are silent for any mention of any heart or heart-related issue or condition. Report of a VA examination dated in February 2007, noted a diagnosis of idiopathic cardiomyopathy and nonsustained ventricular tachycardia. Private treatment reports dated from 2007 through 2015 show that the Veteran received follow up evaluation and treatment for dilated cardiomyopathy. More recently, the Veteran underwent a DBQ examination in June 2018 for his claimed heart condition, and the examiner reported diagnoses of congestive heart failure, supraventricular arrhythmia, ventricular arrhythmia, and cardiomyopathy. Thus, the requirement for a current disability is met. While the Veteran had no evidence of any heart-related issues or conditions during his initial period of active service, as noted above, he continued his military service in the reserve component, with periods of active duty service for training (ACDUTRA) and inactive duty service for training (INACDUTRA). As noted above, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). “Active military, naval, and air service” includes active duty, any period of active duty for training during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See 38 U.S.C. § 101; Venturella v. Gober, 10 Vet. App. 340 (1997). Here, the Veteran had service on active duty from February 1981 to April 1988, and no evidence of any heart condition is found during this period. The service records obtained in response to the Board’s remand of October 2014 include treatment records for the Veteran’s reserve service commenced in April 1988, with periodic service of varying characterizations through February 2007. Significantly, the STRs from the Veteran’s period of reserve service reflect that he was diagnosed with dilated cardiomyopathy in September 1999 as part of a follow-up echocardiogram. An echocardiogram, performed in October 1999 revealed findings of an irregular heartbeat; the Veteran was diagnosed with idiopathic cardiomyopathy with tachycardia. However, the weight of the evidence demonstrates that the current heart condition was not incurred in or aggravated during any period of active service, in accordance with 38 C.F.R. § 3.6. Thus, the Veteran’s claim does not meet the second prong of service connection, the necessity of an in-service incident, disease, or injury. Upon review of the evidence, the Board concludes that entitlement to direct service connection is not warranted for cardiomyopathy or any related heart condition. While the June 2018 DBQ examiner established the presence of a current disability, the Veteran’s initial manifestation of cardiovascular disease occurred in September 1999, well after the Veteran’s April 1988 separation from active service and outside of his reserve service periods of ACDUTRA and INACDUTRA. Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with a cardiovascular disease, which is a specifically listed chronic disease for VA purposes. 38 C.F.R. § 3.309 (a). However, the medical evidence does not show, and the Veteran has not alleged, that his cardiovascular disease manifested in service or within one year of his separation from active service. The medical records indicate that the cardiovascular disease had its onset in 1999, more than a decade after the Veteran’s discharge from active duty in April 1988. Thus, the preponderance of the evidence is against a finding that the Veteran’s cardiovascular disease manifested to a sufficient degree either in service or within one year of his separation. As such, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology for a heart condition is not warranted in this case. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). The Board acknowledges the Veteran’s contention that his heart condition was caused by his treatment for strep throat in service. Submitted in support of his claim is a medical statement from Dr. Scott Wiggins, dated in December 2016, wherein he opined that it is at least as likely as not that any of the claimed heart conditions, including dilated cardiomyopathy, coronary artery disease, congestive heart failure, and valve insufficiency, was caused by the Veteran’s inservice episode of strep. Dr. Wiggins noted that strep and other infections are known to sometimes attack the heart and valves and cause cardiomyopathy; therefore, they cannot exclude a remove bacterial infection as the cause of the Veteran’s dilated cardiomyopathy. However, following examination of the Veteran and a review of the complete medical record, in June 2018, a VA examiner concluded that it is less likely as not that the Veteran’s idiopathic non-ischemic cardiomyopathy with non-sustained ventricular tachycardia and LVH is secondary to the inservice streptococcal throat infection in 1986. The examiner stated that, notwithstanding the cardiologist’s statement about bacterial or viral infections causing heart muscle issues (cardiomyopathy), it is less likely as not that this is the case here. The examiner explained that the Veteran had no problems until 1999, which is 13 years after the throat infection in service; and echocardiogram done in 1999 initially suggested possible prior endocarditis or a microthrombus in the apex of the left ventricle, but subsequent multiple echocardiograms and nuclear imaging studies have not reproduced or remarked on this 1999 finding at all. The examiner concluded that the 1986 infection did not cause any long-term sequelae at all, including cardiac or renal complications. In light of the above, the Board finds that the criteria for service connection for a heart disability have not been met. Particularly, the Board finds persuasive the June 2018 DBQ medical opinion which was made following a thorough review of all evidence of record and offered a detailed rationale for the opinion. The Board finds this the most probative evidence of record and ultimately outweighs the opinion offered by the Veteran’s private physician in December 2016. Greater weight may be placed on one physician’s opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); see also Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, heart disease, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Heart disease is not the type of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that diagnostic/radiographic studies and other specific findings are needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Based on the foregoing, the Board finds that the preponderance of the evidence is against a grant of service connection for a heart disability. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable, and service connection must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to service connection for hypertension For VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 millimeters (mm) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm or greater with diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, DC 7101, Note 1. The Veteran’s STRs during his period of active duty from February 1981 to April 1988 are completely silent for any mention of hypertension. Significantly, blood pressure readings in August 1986 was 114/62 and the report of medical history was silent for any issues of hypertension. A treatment report in June 1987 reflects a blood pressure reading of 138/71. As such, the record does not show blood pressure readings consistent with hypertension, as defined by regulation, during his active duty service or within one year of his separation from active duty service in April 1988. In his October 2008 notice of disagreement, the Veteran maintained that he was diagnosed with hypertension during his reserve service. In this regard, the Board notes that, while the Veteran had no evidence of any hypertension during his initial period of active service, as noted above, he continued his military service in the reserve component, with periods of active duty service for training (ACDUTRA) and inactive duty service for training (INACDUTRA). As noted above, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). “Active military, naval, and air service” includes active duty, any period of active duty for training during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6 (a). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See 38 U.S.C. § 101; Venturella v. Gober, 10 Vet. App. 340 (1997). As part of the Board remand of October 2014, VA was directed to ascertain the periods of qualifying service during the Veteran’s reserve service through 2007, the year he retired from the Air Force Reserve. The STRs from the Veteran’s period of reserve service reflect that he was diagnosed with and received treatment for hypertension. However, the weight of the evidence demonstrates that hypertension was not incurred in or aggravated during any period of active service. Moreover, hypertension is not a covered disease as defined in accordance with 38 C.F.R. § 3.6. Thus, the in-service occurrence or injury requirement has not been satisfied. There is also no evidence of a relationship between the Veteran current hypertension and service, and neither he nor his representative has alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against the claim that the Veteran’s current hypertension is related to service, manifested during service, or manifested within a year after his April 1988 separation from active service. For the reasons stated above, the Board finds that the preponderance of evidence is against the Veteran’s claim of entitlement to service connection for hypertension and his appeal must be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to service connection for papillary carcinoma, status post thyroidectomy The Veteran essentially contends that he developed cancer of the thyroid while in the Air Force Reserves; as such, his residual hypothyroidism is related to his period of military service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of hypothyroidism, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Significantly, the Veteran’s STRs are completely silent regarding any complaints, treatment, or diagnoses pertaining to a thyroid disorder or a diagnosis of cancer during his period of military service from February 1986 to April 1988. Moreover, while the STRs during the period of reserve service indicates that the Veteran was found to have abnormal thyroid functions in December 2003, had a needle aspiration which suggested the presence of papillary carcinoma and he underwent a thyroidectomy, the weight of the evidence demonstrates that the current residuals of papillary carcinoma, including hyperthyroidism, was not incurred in or aggravated during any period of service, in accordance with 38 C.F.R. § 3.6. Thus, the Veteran’s claim does not meet the second prong of service connection, the necessity of an in-service incident, disease, or injury. As an initial matter, the Board finds that service connection on a direct or presumptive basis is not warranted. In this regard, the record clearly shows that the residuals of papillary carcinoma status post thyroidectomy did not have its onset during the Veteran’s period of active duty, the evidence clearly shows that the first indication of the presence of a thyroid abnormality was in December 2003, more than fifteen years after the Veteran’s discharge from active duty in April 1988. Thus, the preponderance of the evidence is against a finding that the Veteran’s carcinoma manifested to a sufficient degree either in service or within one year of his separation. Moreover, although post service treatment records, dated from February 2007 through December 2016, show that the Veteran has received ongoing follow up evaluation and treatment for hypothyroidism, none of the probative evidence supports a finding of a relationship between the Veteran’s papillary carcinoma status post thyroidectomy and any residuals thereof and his service. None of the treatment records addresses such as relationship. Consideration has also been given to the Veteran’s assertion that he has residuals of papillary carcinoma, status post thyroidectomy, as a result of military service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to lay diagnosis or probative comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Board acknowledges that the Veteran is competent to report observable symptoms, but there is no indication that he is competent to etiologically link any such symptoms to a current diagnosis. He is not shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in evaluating such disorders. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Accordingly, the lay evidence does not constitute competent medical evidence and lacks probative value. In conclusion, the Board finds that service connection for residuals of papillary carcinoma status post thyroidectomy is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs