Citation Nr: 18150637 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-35 660 DATE: November 15, 2018 ORDER The Board’s May 9, 2018, decision addressing the issues of entitlement to service connection for a left knee disorder, hypertension, and peripheral neuropathy and entitlement to an increased rating for a heart disability is vacated. Entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for peripheral neuropathy is denied. Entitlement to an initial evaluation in excess of 30 percent for myocardial infarction, to include ischemic heart disease, is denied. FINDINGS OF FACT 1. In May 9, 2018, the Board denied the issues of service connection for a left knee disorder, hypertension, and peripheral neuropathy and entitlement to an increased rating for myocardial infarction, to include ischemic heart disease. 2. In September 2018, the Veteran requested reconsideration of the May 2018 Board decision and submitted a copy of a January 2018 medical health record from the San Diego Naval Medical Center. 3. The Board accepts that this medical record was constructively possessed by VA at the time of the May 2018 decision. 4. The preponderance of the evidence is against finding that osteoarthritis of the left knee began during active service, or is otherwise related to an in-service injury, event, or disease, and it is not shown to be a related to exposure to herbicide agents, to include Agent Orange. 5. The preponderance of the evidence is against finding that hypertension began during active service, or is otherwise related to an in-service injury, event, or disease, and it is not shown to be a related to exposure to herbicide agents, to include Agent Orange, or exposure to asbestos. 6. The preponderance of the evidence is against finding that peripheral neuropathy began during active service, or is otherwise related to an in-service injury, event, or disease, and it is not shown to be a related to exposure to herbicide agents, to include Agent Orange, or exposure to asbestos. 7. The Veteran did not have more than one episode of acute congestive heart failure in the past year, he does not experience dyspnea, fatigue, angina, dizziness, or syncope with a workload greater than 3 metabolic equivalents (METs) but not greater than 5 METs, and he does not have left ventricular dysfunction with an ejection fraction of 30 to 50 percent. CONCLUSIONS OF LAW 1. A vacate of the May 9, 2018, Board decision is warranted due to the submission of evidence VA constructively possessed. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. 2. The criteria for entitlement to service connection for a left knee disorder have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria for entitlement to service connection for hypertension have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for entitlement to service connection for peripheral neuropathy have not been satisfied. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for entitlement to an initial evaluation in excess of 30 percent for myocardial infarction, to include ischemic heart disease, have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7006. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Navy from November 1962 to January 1985. The Veteran’s active duty included service aboard the U.S.S. Winston from April 1965 to January 1969 and the U.S.S. Carronade from January 1969 to July 1971. Due to his service aboard those ships, the Veteran is presumed to have been exposed to herbicide agents, to include Agent Orange. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law, or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. When the Board issued the May 2018 decision, the Board was unaware of evidence in its constructive possession. Given the addition of evidence in VA’s constructive possession at the time of the Board decision, the decision is vacated and will be reconsidered.   Service Connection Entitlement to service connection for a left knee disorder In his October 2012 notice of disagreement, the Veteran asserts that his left knee osteoarthritis is due to his service, which included duties in food service, as a gun captain, and as a rocket loader. He also asserts that it is related to exposure to herbicide agents, to include Agent Orange. 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 osteoarthritis, 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). The Veteran’s service treatment records do not include any reference to any injuries to, or treatment of, the Veteran’s left knee. In his notice of disagreement, the Veteran asserts that his left knee arthritis is due to his 20 years of service, including assignments such as food service, gun captain, and rocket loader. In a November 2011 he asserted that his “daily routine performance of duties while serving” aboard the U.S.S. Carronade and the U.S.S. Winston caused his left knee disorder. Such vague assertions are limited probative value in determining whether the Veteran’s current diagnosis is related to an in-service event or injury. He does not identify how this service injured his knee, and he does not identify any specific injuries or events, including in sufficient detail to trigger VA’s duty to afford an examination. Accordingly, the Veteran has not satisfied the second prong of service connection showing an in-service event, injury, or treatment for his left knee. Essentially there is no medical evidence of record even suggesting that a knee disorder may have either begun during or been otherwise caused by his military service. As such, entitlement to service connection for a left knee disorder is denied. Entitlement to service connection for hypertension The Veteran asserts that he is entitled to service connection for primary hypertension. Specially, the Veteran asserts that he is entitled to service connection for hypertension insofar as it is a pre-condition of his service-connected ischemic heart disease. In his September 2018 motion for reconsideration, the Veteran asserted that his hypertension was due to asbestos exposure during his active duty on the U.S.S. Winston and the U.S.S. Carronade. Again, 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. While the Veteran has a current diagnosis for hypertension, the Board concludes that 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); 38 C.F.R. § 3.303(a), (d); Holton, 557 F.3d at 1366. The Veteran did not incur hypertension during his active service and cannot satisfy the second element of service connection. The Veteran had one elevated reading of 128/84 mg Hg in May 1980. Otherwise, his blood pressure readings during active service were within normal limits. For instance, the Veteran’s blood pressure was measured as 100/60 mg Hg in a November 1984 report on medical examination performed prior to his retirement. The Veteran’s blood pressure was 106/66 mg Hg in January 1983, 115/74 mg Hg in June 1974 and 118/74 mg Hg in September 1977. Hypertension can be service connected on a presumptive basis if it manifested with one year after a Veteran’s active service. 38 U.S.C. §§ 1110, 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The record does not include treatment records diagnosing the Veteran’s hypertension within one year of his retirement from active service, and the earliest reported diagnoses reflected in treatment records was in summer of 2005, nearly two decades after the expiration of the one-year presumptive period for service connection that applies to hypertension. See 38 C.F.R. § 3.307(a)(3). Moreover, a veteran may establish service connection for hypertension through continuity of symptomology. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Treatment records do not show a continuity of symptomology following the Veteran’s separation from active service in January 1985 and the first diagnosis of hypertension in November 2005. The Veteran asserts that he is entitled to service-connection for hypertension insofar as it is a percussor to his service-connected ischemic heart disease. The assertion is unavailing. Applicable regulations govern the conditions known to be associated with Agent Orange exposure, and while that list includes the ischemic heart disease and describes it as including myocardial infarction, Note 2 to 38 C.F.R. § 3.309(e) specifically excludes hypertension from the definition of ischemic heart disease. Finally, the Veteran asserts that his hypertension was caused by his asbestos exposure during his active service aboard naval vessels. Here, the Board does not need to reach the question of whether the Veteran had asbestos exposure during service, as the evidence of record is solidly against a finding that the Veteran has any disease or disability that is medically linked to asbestos exposure. A September 2018 VA examiner reviewed the Veteran’s claims file, the VA examiner reported that a chest x-ray showed “possible calcified pleural plagues,” which indicated exposure to asbestos, and his treatment records noted scarring in the lungs. However, the VA examiner noted that the Veteran did not have a diagnosis of asbestosis or have evidence of a respiratory disease. The Veteran has not submitted any competent evidence supporting his assertion that his hypertension was due to any asbestos exposure during active service. Therefore, after weighing all the evidence, the Board finds great probative value in the VA examiner’s findings. The Veteran has failed to identify a causal connection between his service – to include service-connected ischemic heart disease, and the onset of hypertension, including to a degree sufficient detail to trigger VA’s duty to afford an examination. Thus, service connection for hypertension cannot be granted, to include based on a purported relationship with the Veteran’s service-connected ischemic heart disease, his presumed herbicide agent exposure, or any asbestos exposure. As such, service connection for hypertension is denied. Entitlement to service connection for peripheral neuropathy The Veteran asserts that he is entitled to service connection for peripheral neuropathy due to exposure to herbicides, to include Agent Orange. In his September 2018 motion for reconsideration, the Veteran asserted that his peripheral neuropathy was due to asbestos exposure during his active duty on the U.S.S. Winston and the U.S.S. Carronade. The Board concludes that the Veteran is not entitled to service connection for peripheral neuropathy. Again, 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. While treatment records document a diagnosis of peripheral neuropathy in March 2006, the Board concludes that the preponderance of the evidence is against finding that peripheral neuropathy began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a), (d); Holton, 557 F.3d at 1366. On his application for disability compensation the Veteran stated that peripheral neuropathy started in January 2006 rather than during his active service. Moreover, the Veteran’s service treatment records are silent for complaints of and treatment for peripheral neuropathy. Thus, the second element of service connection is not met, and the Veteran’s claim must be denied. To the extent the veteran contends that his peripheral neuropathy is related to herbicide exposure, applicable regulations do not identify peripheral neuropathy as a condition for which presumptive service connection can be award. See 38 C.F.R. § 3.309(e). Moreover, he has not submitted any evidence demonstrating on a non-presumptive basis that his exposure to Agent Orange is the direct cause of his peripheral neuropathy. Finally, the Veteran asserts that his peripheral neuropathy was caused by his asbestos exposure during his active service aboard naval vessels. Here, the Board does not need to reach the question of whether the Veteran had asbestos exposure during service, as the evidence of record is solidly against a finding that the Veteran has any disease or disability that is medically linked to asbestos exposure. A September 2018 VA examiner reviewed the Veteran’s claims file, the VA examiner reported that a chest x-ray showed “possible calcified pleural plagues,” which indicated exposure to asbestos, and his treatment records noted scarring in the lungs. However, the VA examiner noted that the Veteran did not have a diagnosis of asbestosis or have evidence of a respiratory disease. The Veteran has not submitted any competent evidence supporting his assertion that his peripheral neuropathy was due to any asbestos exposure during active service. Therefore, after weighing all the evidence, the Board finds great probative value in the VA examiners’ findings. As such, service connection for peripheral neuropathy is denied. Entitlement to an initial evaluation in excess of 30 percent for myocardial infarction, to include ischemic heart disease The Veteran asserts that he is entitled to an increased evaluation for ischemic heart disease because the current evaluation does not compensate him for his symptomology. The Veteran is evaluated under 38 U.S.C. § 4.104, Diagnostic Code 7006. Diagnostic Code 7006 provides a 30 percent rating for workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. The next available evaluation is for 60 percent and applies where a Veteran has more than one episode of acute congestive heart failure in the past year, or a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The Veteran does not satisfy the criteria for an evaluation in excess of 30 percent. Private treatment records from January 2008 document an asymptomatic acute myocardial infarction; however, treatment records do not document more than one episode of acute congestive heart failure during a one-year period. A chest x-ray in December 2011 also documented cardiac hypertrophy. An echocardiogram evaluation performed as part of a VA medical examination in March 2012 documented an ejection fraction of 65 percent for the left ventricle, and the examiner noted that a workload of more than 7 METs triggered dyspnea, fatigue, and angina. A January 2013 VA medical examination report noted no cardiac hypertrophy and METs levels of 5 to 7, with 30 percent due to heart disease and remaining 70 percent due to musculoskeletal issues. The Veteran’s symptomology does not warrant a 60 percent evaluation under 38 C.F.R. § 4.104, Diagnostic Code 7006. The Board notes the Veteran’s assertions that from his October 2012 Notice of Disagreement that the disability arising from his ischemic heart disease exceeds a 30 percent evaluation. However, medical evidence of record evaluating the Veteran’s complaints of shortness of breath, fatigue, and chest pain, which is contemplated by Diagnostic Code 7006, shows that those specific symptoms are not severe enough to warrant a 60 percent evaluation. The Veteran further asserts that the September 2012 rating decision does not provide specific information regarding METs, which should have been presented for consideration. The August 2014 Statement of the Case specifically addressed the METs discussed in the reports from the March 2012 and January 2013 VA medical examinations. In his September 2018 motion for reconsideration, the Veteran asserted that his myocardial infarction was due to his asbestos exposure. However, the Veteran has already been granted service connection for his myocardial infarction. As such, any exposure to asbestos does not need to be considered. As such, a rating in excess of 30 percent for myocardial infarction, to include ischemic heart disease, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Counsel