Citation Nr: 18159094 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-53 817 DATE: December 18, 2018 ORDER Service connection for coronary artery disease (previously claimed as a heart attack or heart condition) is denied. Service connection for neurological problems in both legs, hereinafter referred to as a neurological disorder, is denied. Service connection for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran has coronary artery disease. 2. The Veteran did not sustain a heart injury or disease during service. 3. Symptoms of the coronary artery disease were not chronic in service, were not continuous after service separation, and did not manifest to a compensable degree within one year of separation from service. 4. Symptoms of the coronary artery disease did not begin during service and are not otherwise related to active service. 5. The Veteran had active service in the Southwest Asia Theater of operations during the Persian Gulf War. 6. The Veteran does not have a diagnosed neurological disorder in either leg. 7. There are no objective indications of chronic undiagnosed neurological disability in either leg that manifested during service or to a degree of 10 percent or more following service. 8. The Veteran has PTSD. 9. The current PTSD is not etiologically related to service. 10. The Veteran does not have any other acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for coronary artery disease have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The claimed neurological problems in both legs were not incurred in active service, and may not be presumed to have been incurred therein, including as due to a qualifying chronic disability to include undiagnosed illness. 38 U.S.C. §§ 1110, 1117, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317. 3. The criteria for service connection for an acquired psychiatric disorder to include PTSD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.326, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1987 to October 1987, and December 1990 to May 1991. This matter is on appeal from a February 2016 rating decision issued by the Regional Office (RO) in Huntington, West Virginia. The Board has recharacterized the PTSD issue on appeal as service connection for an acquired psychiatric disorder, to include PTSD, in accordance with the United States Court of Appeals for Veterans’ Claims decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claim for benefits of one psychiatric disorder also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. Neither the Veteran nor the representative has raised any issues regarding the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when a veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Based on the foregoing, the Board finds that all relevant documentation, including VA treatment records, VA examinations, and private treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.159, 3.326. The duties to notify and assist have been met. Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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. 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. See 38 C.F.R. § 3.303(d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. See 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). The coronary artery disease, which is considered a cardiovascular-renal disease, is a chronic disease under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303 (b) apply to the claim of coronary artery disease. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted on a presumptive basis for a Persian Gulf veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1). The term “Persian Gulf veteran” means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The DD Form 214 reflects that the Veteran served in Southwest Asia from December 1990 to May 1991; therefore, this Veteran is a Persian Gulf veteran as defined by 38 C.F.R. § 3.317. A “qualifying chronic disability” for VA purposes is a chronic disability resulting from (A) an undiagnosed illness, (B) a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome (CFS), fibromyalgia, or IBS) that is defined by a cluster of signs or symptoms, or (C) any diagnosed illness that the Secretary determines in regulation prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. 38 U.S.C. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i)(B). “Objective indications of chronic disability” include both “signs,” in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317 (a)(2), (3). Signs or symptoms that may be manifestations of undiagnosed illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; and (12) abnormal weight loss. 38 C.F.R. § 3.317 (b). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Service Connection for a Coronary Artery Disease The Veteran contends that he was exposed to environmental hazards in service and that those hazards caused the coronary artery disease. March 2016 Notice of Disagreement. After a review of all the evidence, lay and medical, the Board finds that the Veteran has a currently diagnosed disability of coronary artery disease. See December 2015 VA Examination. The weight of the lay and medical evidence shows no in-service injury or disease of the heart, or chronic symptoms of coronary artery disease in service. The Veteran was examined several times during service and did not report any subsequent complaints of symptoms related to the coronary artery disease. See July 1987 Service Treatment Records, September 1987 Service Treatment Records, August 1988 Service Treatment Records, July 1990 Service Treatment Records. December 1990 Service Treatment Records. Upon review of the service treatment records, the Veteran made various sick call reports, none of which are related to the current coronary artery disease. In July 1987, the Veteran reported having chest pain and trouble breathing and the examiner noted that the Veteran had a heat rash and musculoskeletal chest pain. July 1987 Service Treatment Records. The Veteran reported this same chest pain on three occasions in July 1987, but all complaints were assessed as musculoskeletal pain, not cardiac pain. The Veteran underwent two service examinations in September 1987 and August 1988, both of which noted that the heart was in normal condition. See September 1987 Annual Examination, August 1988 Service Separation Examination. In July 1990, the Veteran was injured and broke some ribs, which required surgical treatment, but no cardiac injury or disease. The Veteran reported that he did not have any physical defects which might restrict his performance on active duty. See July 1990 Service Treatment Record; December 1990 Service Treatment Records. The weight of the lay and medical evidence shows no continuous post-service symptoms of coronary artery disease following service separation, or coronary artery disease manifesting to a degree of 10 percent within one year of service. See December 2014 VA Treatment Records. Post-service treatment records indicate that the Veteran did not experience symptoms related to the coronary artery disease until December 2014, more than 23 years after service separation. A March 1993 annual certificate of physical condition and a May 1993 annual examination both indicate that the Veteran’s heart was in normal condition and no problems were reported. The first report of record recording symptoms of the coronary artery disease is in December 2014 VA treatment records. In December 2014, the Veteran’s mother called the VA treatment center to report that the Veteran, her son, was experiencing chest pain and elevated blood pressure. VA instructed her to bring the Veteran to the emergency room. At that time, VA documented the phone call and noted that the Veteran has a history of tobacco use disorder. December 2014 VA Treatment Records. The weight of the evidence is against finding a nexus between the current disability and any in-service event. See December 2015 VA Examination. The Veteran submitted to a December 2015 VA examination, reporting that he had two acute, post-service myocardial infarcts, one in 2013 and the other in 2014. The Veteran also reported having stents placed in 2013. The Veteran told the VA examiner that he got fatigued after long periods of activity but denied chest pain. The VA examiner diagnosed coronary artery disease and opined that it was less likely related to exposures in military service. The VA examiner also noted that the Veteran has multiple risk factors for heart disease including morbid obesity, hypertension, and hyperlipidemia. While the Veteran is competent to report his symptoms, he does not proffer any specific explanation of how the current coronary artery disease is connected to service. The Veteran does not describe a specific in-service event or point to a relevant timeframe for service connection. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010) (upholding Board finding that vague and inconsistent lay statements were not credible because they were in direct contradiction to the more credible, competent, reliable, and clearly documented medical evidence). The first report of symptoms on the record were far removed from service separation. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board’s denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). There are multiple non-service related factors that could have contributed to the coronary artery disease, including morbid obesity, hypertension, hyperlipidemia, and tobacco use. As a preponderance of the evidence is against the claim, service connection for the coronary artery disease must be denied. 2. Service Connection for a Neurological Disorder in Both Legs The Veteran contends that the neurological disorder in both legs was caused by service. March 2016 Notice of Disagreement. The Veteran claims that he was exposed to airborne toxins in service and that those toxins caused the neurological disorder in both legs. Id. After a review of all the evidence, lay and medical, the Board finds that the Veteran has not been diagnosed with a neurological disorder in either leg. The Board also finds that the Veteran is a Persian Gulf veteran; therefore, the presumptive service connection provisions for qualifying chronic disabilities, including undiagnosed illness, apply. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(b). The Board finds that the weight of the evidence shows no in-service injury, disease, or event relevant to a neurological disorder. According to service treatment records, there are no complaints of or treatment for injuries or diseases related to the legs. In fact, service examinations indicate that the lower extremities and neurologic system are in normal condition. See September 1987 Service Examination, August 1988 Service Examination. The Veteran is competent to provide lay evidence about experiencing symptoms of the neurological disorder, but the weight of the evidence is against finding an in-service event or a nexus. There are no contemporaneous medical records documenting the symptoms of the claimed neurological disorder. A neurological disorder in the legs is a condition that would have ordinarily been recorded during service, especially in this case where the Veteran reported several musculoskeletal issues in the legs. Therefore, the complete service treatment records, which were generated contemporaneous to service, are likely to accurately reflect the Veteran’s physical condition, are of significant probative value. See Kahana at 437; Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (citing Fed. R. Evid. 803(7) for the proposition that the absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). In this case, there are no objective indications, either signs or other non-medical indicators that are capable of independent verification, of a chronic undiagnosed neurological disability in either leg. In addition, objective neurological indications did not manifest during service or to a degree of 10 percent or more following service. Several post-service treatment records indicate that the Veteran reported several musculoskeletal injuries to the legs, but none are related to the claimed neurological disorder. The Board also finds that any claimed pain associated with the claimed neurological disorder does not amount to functional impairment for the purposes of disability compensation. Saunders v. Wilkie, 886 F.3d, 1356, 1368 (Fed. Cir. 2018) (holding that, to establish the presence of a disability, the veteran will need to show that her pain reaches the level of functional impairment of earning capacity). Post-service treatment records indicate that the Veteran reported several leg injuries right after service discharge, but none of the reports are neurological in nature. In December 1991, the Veteran reported limited range of motion in both legs and was diagnosed with shin splints and a tendon sprain. See December 1991 VA Treatment Records. In July 2012, the Veteran reported pain and swelling in the right upper extremity and both lower extremities. See July 2012 VA Treatment Records. In the July 2012 VA treatment records, the Veteran reported that he previously sustained a gunshot injury in his right thigh four years ago during a robbery with no major injury to the neurovascular structures. The VA examiner administered some tests and concluded that there was no electrodiagnostic evidence of myopathy involving the lower extremities or large fiber polyneuropathy involving the lower extremities or lumbar spine. The VA examiner noted that the Veteran had morbid obesity, hyperlipidemia, and a history of tobacco use. In February 2013, the Veteran complained of swelling in the legs, increased thirst, and weight gain. The VA examiner assessed that the Veteran was prediabetic and recommended gastric bypass surgery. The Veteran continued to report chronic leg cramps. See February 2015 VA Treatment Records. In December 2015, the Veteran submitted to a VA examination, reporting that he experienced leg cramps and intermittent subjective tingling in the legs. The VA examiner noted that the Veteran does not have a peripheral nerve condition or peripheral neuropathy. Several tests were conducted to assess extension, flexion, sensory touch, and reflex, which all resulted in normal findings. The VA examiner noted that the Veteran did not walk with a gait. The VA examiner administered an electromyography test (EMG) to assess the Veteran’s nerves in both lower extremities, which also yielded normal results. The VA examiner remarked that there are no clinical objective indications related to peripheral neuropathy. Moreover, there are various other factors are contributors to neurological disorder, including morbid obesity, hyperlipidemia, tobacco use, prediabetic status, and the civilian gunshot wound. As noted above, the Veteran is a Persian Gulf veteran and claims to have an undiagnosed illness of a neurological disorder in both legs. However, there are no objective indications, medical or non-medical capable of independent verification, that the undiagnosed illness has manifested in service or to a compensable degree after service separation. 38 C.F.R. § 3.317(a)(1)(i). A compensable rating for nerve paralysis, as described in Diagnostic Code 8520, requires mild paralysis for a 10 percent rating. The weight of the evidence does not reflect that the Veteran’s neurological disorder is characterized by mild paralysis. In fact, nerve tests indicate normal nerve function. See July 2012 VA Treatment Records, December 2015 VA Examination. As such, the Board finds that service connection is not warranted under the Persian Gulf War presumption. 38 C.F.R. § 3.317. The weight of the evidence demonstrates that the Veteran does not have a neurological disorder in either leg. There is no currently diagnosed disability, and the reported bilateral leg pain has not resulted in functional impairment. Treatment records relevant to the claim show subjective complaints in lay evidence of pain in the legs, but show no objective manifestations of neurological disorder; rather, the evidence shows normal functioning with no reduction in earning capacity due to reported leg pain. As a preponderance of the evidence is against the claim, service connection for the claimed neurological disorder in both legs must be denied. 3. Service Connection for a Psychiatric Disorder to Include PTSD The Veteran contends that a acquired psychiatric disorder to include PTSD is connected to service. The Veteran claims that he was exposed to hostile actions, missile fire, and explosions in service, and, as a result, experiences nightmares, anxiety, and has difficulty maintaining relationships. March 2016 Notice of Disagreement. After a review of all the evidence, lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran has PTSD. The Veteran submitted to two VA Examinations, in January 2015 and again in December 2015, each of which make contradictory findings in regard to a diagnosis and nexus. In resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran has PTSD, but does not have any other acquired psychiatric disorder. See January 2015 VA Examination (fining no diagnosis for any psychiatric disorder, including PTSD), December 2015 VA Examination (finding only a PTSD diagnosis). The Board finds that the Veteran has PTSD, consistent with the January 2015 VA Examination. The Board finds that the weight of the evidence is against a finding that the current PTSD is related to s service. The December 2015 VA examination is more probative regarding a nexus as it collected more specific information from the Veteran, documented more notes as a result of this collection, its findings were more specific, and it provided a reasonable rationale for its disagreement with the January 2015 VA examination. The Veteran is competent to provide lay evidence about symptoms he is experiencing, but is not competent to render a psychiatric diagnosis or form a connection between a diagnosis and service. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”); Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that a claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness). The weight of the evidence shows that the claimed psychiatric disorder to include PTSD did not have its onset in service and is not otherwise related to service. In the January 2015 VA examination, the VA examiner diagnosed PTSD. In rendering this diagnosis, the VA examiner noted the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and an inability to establish and maintain effective relationships. The VA examiner opined that it is more likely than not that the vast majority of the Veteran’s mental health concerns are directly related to service. In addition, the VA examiner considered the Veteran’s family and social relationships as well as his educational and medical histories. Pertinent to this case, the VA examiner also noted that the Veteran was on parole after he was incarcerated for seven years from 1998 to 2003 for second degree sexual assault and, while incarcerated, sustained a knife wound. In the December 2015 VA examination, the VA examiner assessed that the Veteran did not have a diagnosis of PTSD or any other acquired psychiatric disorder. The VA examiner noted the following symptoms: depressed mood, anxiety, chronic sleep impairment. The VA examiner noted that the Veteran reported to enjoy his time in the military and that he “didn’t want to get out.” The VA examiner opined that the Veteran’s symptoms were related to several post-service events reported by the Veteran. First, the Veteran reported contemplating suicide after being accused and convicted of sexual assault of a minor. During the examination, the Veteran claimed to have some anxiety related to his romantic relationship and avoided being intimate because he was worried that his girlfriend could accuse him of sex crimes. Second, the Veteran reported that while in prison a fellow inmate attempted to attack him with a knife. Third, the Veteran also reported that after he was released from prison and he was robbed by gunpoint and shot in the leg by two men. The Veteran reported that he has some nightmares about his prison experiences and being robbed. The VA examiner opined that the Veteran’s current symptoms were not related to military service but rather brought on by traumatic experiences after service separation. The Board finds the December 2015 VA examination nexus opinion to be more probative. The December 2015 examiner reviewed the entire claims file whereas the January 2015 examiner did not. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (upholding Board determination that VA examination reports were more probative because they were more thorough and detailed, they discussed the conflicting opinions, and examiners had access to the claims file). Moreover, the December 2015 VA examiner pointed out the inconsistency in the Veteran’s statements when the Veteran claimed he enjoyed his time in service versus when the Veteran claimed he felt anxious in service because of his exposure to hostile actors. The December 2015 examination included specific information about how the symptoms were brought on by post-service events, specifically correlating symptoms and post-service events. The January 2015 examination did not specifically or directly explain how the claimed symptoms were related to service. (Continued on the next page)   As a preponderance of the evidence is against the claim, service connection for an acquired psychiatric disorder to include PTSD must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel