Citation Nr: 18144011 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-07 974 DATE: October 22, 2018 ORDER Entitlement to service connection for coronary artery disease is denied. Entitlement to service connection for residuals of a cerebrovascular accident is denied. Entitlement to service connection for seizures is denied. REMANDED Entitlement to an increased rating for degenerative disc disease of the lumbar spine is remanded. Entitlement to an increased rating for a chronic strain of the left knee is remanded. Entitlement to an increased rating for a chronic strain of the right knee is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. A current cardiovascular disability did not have its onset in service, has not been chronic or continuous since service, and did not manifest to a compensable degree within a year of service separation. 2. A current cerebrovascular disability did not have its onset in service, has not been chronic or continuous since service, and did not manifest to a compensable degree within a year of service separation. 3. A current seizure disorder did not have its onset in service, has not been chronic or continuous since service, and did not manifest to a compensable degree within a year of service separation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for coronary artery disease have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for entitlement to service connection for residuals of a cerebrovascular accident have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 3. The criteria for entitlement to service connection for a seizure disorder have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1977 to July 1980, and from February 1991 to August 1991. He also had unverified periods of active duty for training and inactive duty training between July 1980 and February 1991. In May 2018, the Veteran testified before a Veterans Law Judge. A transcript of this hearing has been associated with the claims file. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become 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. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. Id. 1. Entitlement to service connection for coronary artery disease The Veteran seeks service connection for coronary artery disease and residuals of a myocardial infarction. He asserts his coronary artery disease began during active duty service and service connection is therefore warranted. After considering the totality of the record, the Board finds the preponderance of the evidence to be against this claim, as the claimed disability did not have its onset in service or within a year thereafter. While the Veteran has presented competent evidence of a current cardiovascular disability, the preponderance of the evidence is against a finding that such a disability had its onset during service, has been chronic or continuous since that time, or manifested to a compensable degree within a year of service separation. Considering first the service treatment records, these are without any evidence of a diagnosis of or treatment for a cardiovascular disability. The Veteran was afforded an April 1991 service separation examination. At that time, he was without any cardiovascular disabilities. On a concurrent report of medical history, he denied any history of shortness of breath, pain or pressure in the chest, or heart trouble. Thus, the Board must conclude a cardiovascular disability was not incurred in service. The first competent evidence of cardiovascular disability dates to January 2005, when he was seen for chest pain and coronary artery disease with myocardial infarction was diagnosed. At that time, the Veteran denied any prior history of a cardiovascular disability. At his May 2018 hearing, the Veteran himself testified that his coronary artery disease and myocardial infarction were first diagnosed in 2004, more than 10 years after service separation. He also claimed, however, that he was treated for chest pain during his 1991 period of active duty service, although he was unable to provide records to substantiate this assertion. This statement also contradicts what he told examiners in 2005, when he denied any past history of a cardiovascular disability. Thus, the record reflects the Veteran was not diagnosed with a cardiovascular disability until nearly 15 years after service separation This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, no competent expert has established that the Veteran’s current coronary artery disease began during service, has been chronic since that time, or manifested to compensable degree within a year of service separation. Thus, the Board must conclude that a cardiovascular disability did not have its onset during active duty service, has not been chronic or continuous since that time, and did not manifest to a compensable degree within a year of service separation. Also, such a disability is not due to or the result of an in-service disease or injury. The Veteran himself asserts that his coronary artery disease began during active duty service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, cardiovascular disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a cardiovascular disability, claimed as coronary artery disease with a history of myocardial infarction, and the claim must thus be denied. Evidence has not been presented that such a disability began during service, has been chronic or continuous since service separation, or manifested to a compensable degree within a year of service separation. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Entitlement to service connection for residuals of a cerebrovascular accident The Veteran seeks service connection for residuals of a cerebrovascular accident. He asserts a cerebrovascular disease began during active duty service and service connection is therefore warranted. After considering the totality of the record, the Board finds the preponderance of the evidence to be against this claim, as the claimed disability did not have its onset in service or within a year thereafter. While the Veteran has presented competent evidence of a current cerebrovascular disability, the preponderance of the evidence is against a finding that such a disability had its onset during service, has been chronic or continuous since that time, or manifested to a compensable degree within a year of service separation. Considering first the service treatment records, these are without any evidence of a diagnosis of or treatment for a cerebrovascular disability. The Veteran was afforded an April 1991 service separation examination. At that time, he was without any cerebrovascular disabilities. On a concurrent report of medical history, he denied any history of shortness of breath, high blood pressure, or other symptoms of a cerebrovascular disorder. Thus, the Board must conclude a cerebrovascular disability was not incurred in service. The first competent evidence of cerebrovascular disability dates to December 2008, when he was hospitalized for slurred speech, and a cerebrovascular accident was diagnosed. Thus, the record reflects the Veteran was not diagnosed with a cerebrovascular disability until over 15 years after service separation At his May 2018 personal hearing, the Veteran asserted that he was first diagnosed with a cerebrovascular accident in 2004. While the medical evidence of record does not reflect a diagnosed cerebrovascular accident until 2008, both dates are more than 10 years after service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, no competent expert has established that the Veteran’s current cerebrovascular disease with cerebrovascular accident began during service, has been chronic since that time, or manifested to compensable degree within a year of service separation. Thus, the Board must conclude that a cerebrovascular disability did not have its onset during active duty service, has not been chronic or continuous since that time, and did not manifest to a compensable degree within a year of service separation. Also, such a disability is not due to or the result of an in-service disease or injury. The Veteran himself asserts that his cerebrovascular disorder began during active duty service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, cerebrovascular disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a cerebrovascular disability with cerebrovascular accident, and the claim must thus be denied. Evidence has not been presented that such a disability began during service, has been chronic or continuous since service separation, or manifested to a compensable degree within a year of service separation. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 3. Entitlement to service connection for seizures The Veteran seeks service connection for a seizure disorder. He asserts such a disorder began during active duty service and service connection is therefore warranted. After considering the totality of the record, the Board finds the preponderance of the evidence to be against this claim, as the claimed disability did not have its onset in service or within a year thereafter. While the Veteran has presented competent evidence of a current seizure disorder, the preponderance of the evidence is against a finding that such a disability had its onset during service, has been chronic or continuous since that time, or manifested to a compensable degree within a year of service separation. Considering first the service treatment records, these are without any evidence of a diagnosis of or treatment for seizures or any related disability. The Veteran was afforded an April 1991 service separation examination. At that time, he was without any neurological disabilities, to include seizures. On a concurrent report of medical history, he denied any history of epilepsy or fits. Thus, the Board must conclude a seizure disorder was not incurred in service. The first competent evidence of cerebrovascular disability dates to 2010, when a seizure disorder secondary to his cerebrovascular accident was diagnosed. Thus, the record reflects the Veteran was not diagnosed with a seizure disorder until over 15 years after service separation At his May 2018 personal hearing, the Veteran asserted that he first experienced a seizure in 2005. While the medical evidence of record reflects he repeatedly denied on several occasions in 2004 and 2005 any history of seizures and did not seek treatment for seizures until 2010, both dates are more than 10 years after service separation. This lengthy period without complaint or treatment is one piece of evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Additionally, no competent expert has established that the Veteran’s current seizure disorder began during service, has been chronic since that time, or manifested to compensable degree within a year of service separation. In fact, competent experts have repeatedly attributed the Veteran’s seizure disorder to his 2008 cerebrovascular accident and, while the Veteran has claimed service connection for this disability, that claim has been denied herein. Thus, the Board must conclude that a seizure disorder did not have its onset during active duty service, has not been chronic or continuous since that time, and did not manifest to a compensable degree within a year of service separation. Also, such a disability is not due to or the result of an in-service disease or injury. The Veteran himself asserts that his seizure disorder began during active duty service. As a layperson, however, the Veteran is not capable of making medical conclusions; thus, his statements regarding causation are not competent evidence. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. Id; see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, seizure disorders are complex disorders which require specialized training for a determination as to diagnosis and causation, and they are therefore not susceptible of lay opinions on etiology, and the Veteran’s statements therein cannot be accepted as competent medical evidence. The Veteran is also not reporting an expert opinion as told to him, and his lay contentions have not subsequently been confirmed by a competent expert. In conclusion, the preponderance of the evidence is against the award of service connection for a seizure disorder, and the claim must thus be denied. Evidence has not been presented that such a disability began during service, has been chronic or continuous since service separation, or manifested to a compensable degree within a year of service separation. As a preponderance of the evidence is against the award of service connection, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). REASONS FOR REMAND 1. Entitlement to an increased rating for degenerative disc disease of the lumbar spine is remanded. 2. Entitlement to an increased rating for a chronic strain of the left knee is remanded. 3. Entitlement to an increased rating for a chronic strain of the right knee is remanded. The Veteran seeks increased ratings for his service-connected disabilities of the low back and bilateral knees. Remand of these issues is required to afford the Veteran new VA examinations to assess the functional impairment resulting from these disabilities. Specifically, the prior examinations are insufficient for determining the proper disability rating for the Veteran’s service-connected orthopedic disabilities based on the holding of the U.S. Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Such examinations must, among other findings, determine range of motion on both active and passive motion, with and without weight-bearing. Accordingly, remand of these issues is warranted so that new examinations may be conducted and appropriate findings obtained. 4. Entitlement to a TDIU is remanded. The Veteran also seeks a TDIU. Adjudication of the Veteran’s TDIU claim must, however, also be deferred, as this issue is inextricably-intertwined with the issues being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination so as to determine the current nature and extent of all impairment due to his service-connected right and left knee disabilities. The record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the entire record has been reviewed. All indicated tests should be performed and all findings should be reported in detail. The examiner must test and record the range of motion for the knees in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he/she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Additionally, as it relates to the knees, the examiner should determine whether the Veteran has ankylosis of the knee; instability or subluxation of the knee; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in either knee. As it relates to the instability/subluxation, the examiner is requested indicate whether the impairment is slight, moderate or severe in nature. To the extent possible, the examiner is asked to provide retrospective commentary on the Veteran’s impairment level of the knee disabilities during the appeal period, to include the prior VA examinations performed in conjunction with this claim, and to comment on the range of motion movements that would be painful on passive use, in weight-bearing and non-weight-bearing. 2. Arrange for the Veteran to undergo a VA orthopedic examination to evaluate the severity of the service-connected lumbosacral spine disability. The examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran’s lumbosacral spine. Range of motion for the spine should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. The examiner should also note the presence or absence of intervertebral disc syndrome and, if present, the frequency and duration of any incapacitating episodes. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel