Citation Nr: 18144580 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 13-18 529A DATE: October 24, 2018 ORDER Entitlement to service connection for cardiomyopathy and hypertension is denied. Entitlement to service connection for ischemic stroke, claimed as secondary to cardiomyopathy is denied. REMANDED Entitlement to service connection for a respiratory condition, claimed as wheezing and asbestosis is remanded. FINDINGS OF FACT 1. The Veteran’s cardiomyopathy and hypertension were not manifest during service or within one year of service and they are not otherwise attributable to service. 2. The Veteran’s ischemic stroke was not manifest during service and it is not otherwise attributable to service or a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cardiomyopathy and hypertension are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. 2. The criteria for service connection for ischemic stroke are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from August 1975 to August 1979 and the United States Marine Corps Reserve from January 1982 to May 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The case was previously before the Board in November 2015, at which time, the Board remanded the issues to the Agency of Original Jurisdiction (AOJ) for additional development including, a VA examination to determine the etiology of the Veteran’s cardiovascular disorders and to obtain relevant military personnel records. There has been substantial compliance with respect to the issues being decided. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). For Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arteriosclerosis and cardiovascular disease, which includes organic heart disease, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree (10 percent disabling) within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). Even if service connection is not warranted under one of the presumptive regulations, this does not preclude a claimant from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). In the context of Reserve or National Guard service, the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); see also 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. 1. Entitlement to service connection for cardiomyopathy and hypertension The Veteran seeks service connection for cardiomyopathy and hypertension, which he asserts is related to his active duty service. At a June 2015 Board hearing, the Veteran testified that he experienced lightheadedness, dizziness and shortness of breath during active duty service in 1977 and that he was hospitalized overnight. The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for cardiomyopathy and hypertension have not been met. The Veteran served in the United States Marine Corps from August 1975 to August 1979 and the United States Marine Corps Reserve from January 1982 to May 1999. A February 1993 EKG revealed left anterior fascicular block and left ventricular hypertrophy with electrocardiographic wave (QRS) widening. A February 1993 Report of Medical Examination noted that the EKG revealed left anterior hemiblock and left ventricular hypertrophy. Post-service treatment records reflect a history of severe hypertension with cardiomyopathy from February 1999. A February 1999 MUGA scan, revealed moderate left ventricular dysfunction with global hypokinesis of the left ventricle and a calculated left ventricular ejection fraction of 37 percent. The private treatment provider noted that the pattern was suggestive of cardiomyopathy. A February 1999 echocardiography revealed mild to moderate left ventricular dysfunction with a calculated left ventricular ejection fraction of 40 percent with global hypokinesis of the left ventricle; mild to moderate concentric left ventricular hypertrophy; mild mitral regurgitation; and mild tricuspid insufficiency with normal systolic pulmonary artery pressure. A May 2002 private treatment record reflects a diagnosis of two to one heart block and nonischemic cardiomyopathy. The treatment provider noted that the Veteran had a history of hypertension and nonischemic cardiomyopathy. He underwent a heart catherization in February 1999, which showed mild mitral regurgitation, normal PA pressures, ejection fraction of 40 percent with global hypokinesis and concentric left ventricular hypertrophy. The treatment provider opined that the heart catherization in 1999 did not suggest a primary valvular problem. May 2002 private treatment records, reflect that the Veteran had a two to one and high degree atrioventricular block (AV block); and underwent a permanent pacemaker implantation. An April 2009 statement from a private treatment provider reflects a diagnosis of nonischemic cardiomyopathy and hypertension. The treatment provider noted that the Veteran had a significant nonischemic cardiomyopathy with an ejection fraction of 33 percent, status post biventricular (BIV) pacemaker and implantable cardioverter defibrillator (ICD). The treatment provider did not discuss or provide an opinion regarding the etiology of the Veteran’s cardiomyopathy or hypertension. The Veteran submitted private medical reports in December 2009. The first medical report reflected a diagnosis of congestive heart failure status post BIV pacemaker and ICD; mitral regurgitation status post mitral valve repair; ventricular tachycardia and hypertension. The treatment provider noted that the Veteran was initially diagnosed in 2006 or prior. The treatment provider did not discuss or provide an opinion regarding the etiology of the Veteran’s cardiomyopathy or hypertension. Another December 2009 private medical report reflected a diagnosis of nonischemic cardiomyopathy, automatic implantable cardioverter defibrillator (AICD) in situ interrogation, right ventricular (RV) lead malfunction, mitral valve repair and MAZE procedure, and atrial fibrillation. The treatment provider did not provide an opinion regarding the etiology of the Veteran’s cardiomyopathy or hypertension. A May 2011 private treatment statement reflects a diagnosis of nonischemic dilated cardiomyopathy. The treatment provider noted that the Veteran had a pacemaker placed in 2002 for bradycardia (?AV block). In 2006, it was upgraded to a bi-ventricular implantable defibrillator. In April 2006, he underwent a mitral valve repair, left atrial maze procedure, and closure of the left atrial appendance. In February 2010, the Veteran underwent an ICD generator change. He was hospitalized in February 2001 with decompensated congestive heart failure (CHF). The treatment provider did not discuss or provide an opinion regarding the etiology of the Veteran’s cardiomyopathy and hypertension. VA obtained a medical opinion in July 2018 pursuant to the Board’s remand. The examiner was asked to consider the February 1993 EKG findings and any other additionally obtained service records as well as the Veteran’s testimony that he was hospitalized in service in 1977 after experiencing lightheadedness and shortness of breath. The examiner opined that it was less likely than not that the Veteran’s cardiovascular disability was (i) incurred or manifested during active service, (ii) manifested to a compensable degree within one year of discharge from active duty, (iii) was otherwise related to any incident of service, including any verified period of active duty, or (iv) was related to an injury incurred during a period of INACDUTRA. The examiner noted that a record in the Veteran’s service treatment records revealed that he had an EKG in 1993, which suggested left ventricular hypertrophy. However, there was no evidence of elevated blood pressure readings or a diagnosis of hypertension while the Veteran was in service. Further, the examiner noted that the Veteran’s echocardiogram in 2011 revealed that he had mild left ventricular hypertrophy which would not be the cause of the Veteran’s cardiomyopathy. The July 2018 VA opinion establishes that the Veteran’s cardiomyopathy and hypertension are not related to service. The July 2018 VA opinion is competent, credible and probative, and coupled with the other medical evidence of record, supports a conclusion that service connection for cardiomyopathy and hypertension is not warranted. In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider’s knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, supra. The July 2018 VA examiner considered the medical history of the Veteran, provided a fully articulated opinion, and furnished a reasoned analysis. There is no contrary opinion of record. The Board notes that the Veteran has submitted statements from private treatment providers. Although, the private treatment providers discussed the medical history of the Veteran’s cardiomyopathy and hypertension from approximately 1999, they did not discuss the etiology of the Veteran’s cardiomyopathy and hypertension. The Board therefore attaches significant probative value to the July 2018 VA opinion and the most probative value in this case, as the opinion was well reasoned, detailed, and consistent with other evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-449 (2000). Accordingly, as there is no competent and credible evidence of the onset of cardiomyopathy or hypertension in service or during a qualifying period of service, or within one year of discharge from active duty, the Board finds that entitlement to service connection for cardiomyopathy and hypertension is not warranted. Based on the evidence as outlined above, the Board finds that the evidence of record weighs against a finding of a nexus between the Veteran’s cardiomyopathy and hypertension and service. The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant’s favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran’s claim, and thus, that doctrine is not applicable. The Veteran’s claim of entitlement to service connection for cardiomyopathy and hypertension is not warranted. 2. Entitlement to service connection for ischemic stroke, claimed as secondary to cardiomyopathy The Veteran seeks service connection for ischemic stroke, which he asserts is related to cardiomyopathy and hypertension. At a June 2015 Board hearing, the Veteran testified that his ischemic stroke was due to his heart problem. He does not assert, and the evidence does not demonstrate, that the Veteran’s ischemic stroke occurred during a period of qualifying service. Service connection may be granted for a disability proximately due to or the result of a service-connected disability and where aggravation of a nonservice-connected disorder is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 446-449 (1995) (en banc). Service treatment records are silent as to any complaints, treatment or clinical diagnosis for ischemic stroke. Post service-treatment records are silent as to any treatment or clinical diagnosis for ischemic stroke. An October 2011 VA treatment record reflects that the Veteran reported he had been told that he had a stroke. The treatment provider noted that the Veteran did not have any neurological deficits. Based on the evidence as outlined above, the Board finds that service connection is not warranted for an ischemic stroke. As an initial matter, the Board finds that entitlement to service connection for an ischemic stroke on a secondary basis is not warranted, as the Veteran has not been service-connected for cardiomyopathy and hypertension. Nevertheless, the Board must consider whether the Veteran is entitled to service connection for an ischemic stroke on a direct basis. Service connection for an ischemic stroke is not warranted on a direct basis, because there is no clear objective evidence that the Veteran has had an ischemic stroke. Service connection cannot be granted if there is no present disability. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. See also, See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran’s statements and testimony that he has an ischemic stroke as a result of his service. The Veteran’s statements are not competent evidence of a diagnosis of an ischemic stroke or of a nexus to the Veteran’s service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, to the extent that the Veteran’s report is accurate, there is no competent, credible and probative evidence on the onset of such on active duty or during another qualifying period of service. Equally as significant is that there is no competent, credible and probative evidence linking an ischemic stroke to a period of active duty or ACDUTRA. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding of service connection for an ischemic stroke. Thus, the claim for service connection is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. The Board notes that under the provisions of 38 U.S.C. § 5107(b), the benefit of the doubt is to be resolved in the claimant’s favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a respiratory condition, claimed as wheezing and asbestosis is remanded. The Veteran seeks service connection for a respiratory condition, which he asserts is related to exposure to asbestos in service. At a June 2015 Board hearing, the Veteran testified that he was aboard the USS Guadalcanal for three months in 1977, during which time he was exposed to asbestos when he worked in the laundry detail. The Veteran also testified that he always had problems breathing, and he thought that it was related to his heart condition. However, after testing, treatment providers told the Veteran he had little fibers in his lungs. The Veteran was afforded a VA examination in July 2018, which reflected a diagnosis of chronic obstructive pulmonary disease (COPD) and restrictive lung disease. The examiner did not provide an opinion regarding the etiology of the Veteran’s respiratory condition. Therefore, the Board finds that a supplemental VA opinion is warranted to determine the etiology of the Veteran’s respiratory condition. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion to ascertain the etiology of the Veteran’s respiratory condition. The claims file should be made available to and be reviewed by the examiner in conjunction with this inquiry. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that any current respiratory condition (to include COPD and restrictive lung disease) manifested during, is otherwise causally or etiologically related to a period of active duty service or ACDUTRA. The examiner should consider and discuss the following: (a.) April 2006 private treatment record which reflects that physical examination of the Veteran revealed that his lungs were a little bit diminished bilaterally and there were some mild crackles at the left base; (b.) September 2008 private treatment record, which reflects a chest CT scan which revealed minimal atelectasis in the lungs, and a few bullae that were present in both lungs; (c.) June 2005 chest x-ray which revealed that a lung parenchymal infiltrate was present in the left mid lung. In rendering the opinions, the examiner should consider the Veteran’s statements regarding his symptoms of a respiratory condition to be competent and credible. (Continued on the next page)   The examiner should provide a complete rationale for all opinions expressed and conclusions reached. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel