Citation Nr: 18151974 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 18-21 117 DATE: November 20, 2018 ORDER Entitlement to service connection for heart conditions, also claimed as heart palpitations, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include major depression and generalized anxiety disorder is remanded. Entitlement to service connection for hearing loss is remanded. Entitlement to service connection for chronic myositis of the para-cervical spine muscles, also claimed as chronic cervical spine pain (hereinafter “cervical spine disability”), to include as secondary service-connected left elbow arthritis and/or impairment of supination and/or pronation of forearm is remanded. Entitlement to service connection for hypertension is remanded. FINDING OF FACT There is no competent evidence of record that shows the Veteran has a heart condition, also claimed as heart palpitations, which had its onset during service, had its onset during an applicable presumptive period following active service, or is otherwise related to active service. CONCLUSION OF LAW The criteria for service connection for a heart condition, also claimed as heart palpitations have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1961 to November 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the San Juan, Commonwealth of Puerto Rico, Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran’s claim of entitlement to service connection for major depressive disorder and generalized anxiety disorder has been recharacterized to broadly reflect that the scope of the claim includes any acquired psychiatric disorder, pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). The Veteran initiated appeals on a number of issues, but only perfected appeals of the issues addressed herein; with the exception of his claim of entitlement to service connection for hypertensive cardiovascular disease as discussed above. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The listed chronic conditions include cardiovascular-renal disease. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran is seeking service connection for heart conditions, also claimed as heart palpitations. Service treatment records (STRs), VA treatment records, and private treatment records are devoid of any diagnosis of a heart disability or condition. While the Veteran can report feeling an irregularity of his heartbeat, he is not competent to diagnose any heart condition or disability. In short, there is no competent evidence of any service-connectable disability, nor even a basis on which to seek further development. The claim must be denied. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Brammer v. Derwinski, 3 Vet. App. 223, 255 (1992). REASONS FOR REMAND Service connection for hypertension In February 2016, the Veteran filed a timely appeal to the rating decision issued earlier that month which denied entitlement to service connection for hypertensive cardiovascular disease (also claimed as a heart condition), among other issues. To date, the RO has not issued a statement of the case with regard to this issue; the Veteran incorrectly believed this disability was part of his claimed heart condition, addressed above. The failure to issue a statement of the case in such a circumstance renders this claim procedurally defective and necessitates a remand. See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2017); Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issue is remanded for the issuance of a statement of the case. Service connection for acquired psychiatric disorder The Veteran contends that he has an acquired psychiatric disorder, to include major depressive disorder and generalized anxiety disorder that is related to his time in service. The Veteran asserts that he began experiencing symptoms during his time in service. The Veteran’s STRs are negative for treatment for complaints of depression and/or anxiety. The Veteran’s VA treatment records show that he has been diagnosed with generalized anxiety disorder and is receiving treatment for this disorder. The report from Dr. M.Q. indicates the Veteran has generalized anxiety disorder and posttraumatic stress disorder and experiences symptoms, including anxiety and depressed mood, that are related to traumatic experiences he had in service. As there is evidence of a currently diagnosed generalized anxiety disorder and an indication of a potential link between this disability and the Veteran’s experiences in service, a remand for a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for bilateral hearing loss The Veteran asserts he has bilateral hearing loss that is due to his time in service, particularly due to noise he was exposed to in his military occupational specialty (MOS) of laundryman. As noted in the February 2016 rating decision, the MOS of laundryman has a low probability of exposure to hazardous noise. The Veteran’s STRs are negative for complaints or diagnoses related to bilateral hearing loss; however, it does not appear that audiological testing was performed in connection with his separation examination. Post-service VA treatment records include audiological testing which documents the Veteran’s bilateral hearing loss. The Veteran has also been prescribed hearing aids. The report from Dr. M.Q. also documented bilateral hearing loss. Since the Veteran’s VA treatment records document hearing loss, and the Veteran has reported having noise exposure during service, the Board finds that a VA examination and medical opinion are necessary to determine the nature and etiology of any hearing loss that may be present. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Service connection for cervical spine disability The Veteran contends that he has a cervical spine disability that is related to his service-connected left elbow disability and/or his service connected impairment of supination and/or pronation of forearm disability. The report submitted from Dr. M.Q. indicates he has chronic cervical spine pain and chronic myositis para-cervical spine muscles. The physician noted that the Veteran suffered body traumas with left elbow dislocation. The physician opined that the Veteran’s musculoskeletal disorders “are more probable than not secondary to his military service performance.” Although it is unclear if Dr. M.Q. conducted a physical examination of the Veteran in rendering his medical opinion, as his report indicates there is evidence of a currently diagnosed cervical spine disability and a potential link between this disability and the Veteran’s time in service, including as secondary to his service-connected left elbow disability, a remand for a VA examination is warranted. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records from the medical center in San Juan and all associated clinics. 2. Schedule the Veteran for a VA audiology examination. The claims folder must be reviewed in conjunction with the examination. Identify any hearing loss disability. The examiner must provide an opinion as to whether any such is at least as likely as not (50 percent or greater probability) related to military service, to include reports of noise exposure during the course of the Veteran’s duties as a laundryman. 3. Schedule the Veteran for a VA mental disorders examination. The claims folder must be reviewed in conjunction with the examination. The examiner should identify all acquired psychiatric disabilities present during the appeal period, including but not necessarily limited to generalized anxiety disorder and major depressive disorder. For each acquired psychiatric disability identified, the examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) related to service. 4. Schedule the Veteran for a VA cervical spine examination. The claims folder must be reviewed in conjunction with the examination. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine or neck disability is the result of injury or disease occurring in service; to include as due to or caused by the Veteran’s left elbow disability and/or impairment of supination and/or pronation of forearm disability. 5. Issue the Veteran a statement of the case with respect to the claim of service connection for hypertension. Include notification of the need to timely file a substantive appeal to perfect an appeal on the issues. Only if the appeal is timely perfected, should the issue be returned to the Board for further appellate consideration, if otherwise in order. 6. Upon completion of the above, readjudicate the remanded issue. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel