Citation Nr: 18160261 Decision Date: 12/26/18 Archive Date: 12/26/18 DOCKET NO. 18-51 264 DATE: December 26, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for chronic renal disease is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a right side inguinal hernia is denied. REMANDED The claim of entitlement to service connection for benign prostate hypertrophy is remanded. The claim of entitlement to service connection for atrial fibrillation is remanded. The claim of entitlement to service connection for congestive heart failure is remanded. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam so herbicide exposure is presumed. 2. The competent evidence of record does not show that the Veteran’s hypertension had its onset during or manifested within a year of his separation from service, or that it is otherwise etiologically related to his active service, to include exposure to herbicide agents. 3. The competent evidence of record does not show that the Veteran’s chronic renal disease had its onset during or manifested within a year of his separation from service, or that it is otherwise etiologically related to his active service, to include exposure to herbicide agents. 4. A right side inguinal hernia was not shown in service, and there is no probative evidence linking such condition to the Veteran’s period of service. 5. The competent evidence of record does not show that the Veteran’s arthritis in the right shoulder had its onset during or manifested within a year of his separation from service, and the preponderance of the evidence is against a finding that the Veteran has a current diagnosed right shoulder disorder as result of his period of service, to include residuals of a right scapula fracture. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for chronic renal disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for right side inguinal hernia have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 4. The criteria for entitlement to service connection for right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1960 to April 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Appeals (VA) regional office (RO). Service Connection Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). Service connection may be established for a disability shown after service when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. 38 C.F.R. § 3.303 (d). To establish service connection for a disability, the Veteran must show: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases, including cardiovascular-renal diseases and arthritis, may also be established on a presumptive basis by showing that the disease manifested to a compensable degree within one year from the date of separation from service. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2018). Certain diseases may be presumed to have been incurred in service where a Veteran was exposed to an herbicide agent, such as Agent Orange, while on active service, even when there is no evidence of such exposure during the period of service. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) (2018). The Veteran’s service personnel records indicate that the Veteran served in the Republic of Vietnam in the late 1960s. As such, exposure to herbicides is presumed. See 38 U.S.C. § 1116 (f) (2012) (a veteran is presumed to have been exposed to herbicides during service in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service). 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 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (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. 1. Entitlement to service connection for hypertension The Veteran seeks entitlement to service connection for hypertension. The Veteran contends that he has hypertension as a result of his period of service. While the Veteran is presumed to have been exposed to herbicide agents, hypertension is not under the list of enumerated conditions in 38 C.F.R. § 3.309 (e). Therefore, service connection due to herbicide exposure is not warranted on a presumptive basis. However, the Veteran is not precluded from presenting evidence that a claimed disability is due to or the result of herbicide exposure to alternatively show entitlement to service connection on a direct basis. Combee v. Brown, 34 F.3d 1039, 1044-45 (Fed. Cir. 1994). The Board must consider whether the evidence of record supports a finding that the Veteran’s hypertension is related to his presumed exposure to herbicide agents. Here, the Board finds that the preponderance of the competent evidence of record is against such a finding. A review of the medical evidence shows that the Veteran has a current disability of hypertension. However, the service treatment records (STRS) are negative for complaints, treatment or diagnosis of hypertension and the evidence indicates that the Veteran was diagnosed with hypertension in 1995, many years after service. Moreover, the evidence addressing the question of medical nexus preponderates against the claim. The Veteran underwent VA compensation examination into his claim in May 2016. In the report of record, the VA examiner concluded that the Veteran’s hypertension was less likely than not incurred in service or caused by service, including exposure to herbicide agents. In support of this medical conclusion, the VA examiner noted that a review of the medical records shows that the Veteran was not diagnosed with hypertension until 1995, many years after his separation from service. The VA examiner determined that the Veteran’s hypertension was more likely due to the natural aging process. In the medical opinion report, the VA examiner cited to medical literature in support of the medical conclusion. This opinion is of probative value because it is based on a review of the medical record and on an interview and examination of the Veteran, and is consistent with the medical evidence of record. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician’s statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Further, there is no medical opinion to the contrary. The Board has also considered whether service connection for the Veteran’s hypertension is warranted on a presumptive basis for chronic diseases, which includes consideration of continuity of the same symptomatology has existed since service, with no intervening cause. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board concludes that, while the Veteran has hypertension, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree within a presumptive period, and continuity of symptomatology is not established. Private treatment records show the Veteran was not diagnosed with hypertension until 1995, which comes 15 years after his separation from service and many years outside of the applicable presumptive period. The Veteran is competent to report observable symptoms that may be associated with hypertension. He is competent to report the onset and continuity of symptoms of such as chest pain and heart palpitations. But he is not competent to diagnose himself with hypertension, or to determine its etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Indeed, there is no competent medical evidence linking his hypertension to service, to include his exposure to herbicide agents. The Board gives more probative weight to the May 2016 VA examiner’s medical opinion that hypertension was not incurred in or caused by service and that it is a result of the natural aging process. In sum, the preponderance of the evidence indicates that hypertension did not have an onset during service or within the first year of discharge from service, and indicates that hypertension is not otherwise etiologically related to active service to include herbicide exposure. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. Therefore, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for chronic renal disease The Veteran seeks entitlement to service connection for chronic renal disease. He asserts that he has chronic renal disease as a result of service. The competent medical evidence of record demonstrates that the Veteran has a current diagnosis of chronic renal disease. However, the STRs are negative for any findings or diagnosis of chronic renal disease. Moreover, the evidence of record indicates onset of kidney problems in the mid 2000s. Renal disease is not listed in 38 C.F.R. § 3.309 (e) so service connection on a presumptive basis as due to herbicide exposure is not warranted. Nevertheless, the Board has considered whether the evidence of record supports a finding that the Veteran’s chronic renal disease is related to his presumed exposure to herbicide agents on a direct basis. See Combee, supra. However, the Board finds that the preponderance of the competent evidence of record is against such a finding. In the May 2016 VA report, the examiner concluded that the Veteran’s chronic renal disease was less likely than not incurred in service or caused by service, include exposure to herbicide agents. In support of this medical conclusion, the VA examiner noted that a review of the medical records shows that the Veteran was not diagnosed with chronic renal disease until 2009, many years after his separation from service. Further, the VA examiner noted that renal disease was not listed as one of the diseases associated with exposure to herbicide agents. Rather, the VA examiner determined that the Veteran’s chronic renal disease was more likely due to his long history of hypertension. The VA examiner cited to medical literature in support of the medical conclusion rendered. The Board affords great probative weight to the VA examiner’s medical opinion that the Veteran’s chronic renal disease is not result of his period of service, to include due to his exposure to herbicide agents. There is no medical opinion to the contrary. The Board acknowledges that the Veteran is competent to report his symptoms, but he has not been found to possess the medical expertise to diagnose chronic renal disease or attribute chronic renal disease to a specific cause. Jandreau, 492 F.3d at 1377. The Board has also considered whether service connection for the Veteran’s chronic renal disease is warranted on a presumptive basis for chronic diseases. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker, 708 F.3d at 1338; Fountain, 27 Vet. App. at 258. While the Veteran has chronic renal disease, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Private treatment records show the Veteran was not diagnosed with chronic renal disease until 2009, which comes more than two decades after his separation from service and many years outside of the applicable presumptive period. Further, the Veteran is not competent to provide a diagnosis in this case or determine that when he first had symptoms of chronic renal disease. See Jandreau, supra. Moreover, the Veteran has not even asserted continuity of symptoms of chronic renal disease since his period of service. The Board gives probative weight to the May 2016 VA examiner’s medical opinion that the Veteran’s chronic renal disease was not incurred in or caused by his period of service, but that his chronic renal disease is a result of his non-service connected hypertension. See Bloom, supra. Given the above, the Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s chronic renal disease had its onset during, or is otherwise etiologically related to, his active service, to include herbicide exposure. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a right side inguinal hernia The Veteran seeks entitlement to service connection for a right side inguinal hernia. The Veteran asserts that he suffered from a right side inguinal hernia during his period of service. 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 post-service treatment records show that the Veteran has a history of inguinal hernia, 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). In this regard, a review of the Veteran’s service treatment records is negative for treatment or diagnosis of right side inguinal hernia. Notably, his service treatment records do show treatment for left side inguinal hernia, and the Veteran has already been awarded service connection for residuals of left side inguinal hernia in a May 1980 rating decision. Again, post-service treatment records show that the Veteran reported a history of inguinal hernia during his period of service; however, service treatment records only reflect treatment and diagnosis of left side inguinal hernia (which has already been service-connected). The Veteran has not provided any further statements on why he feels he has a right side inguinal hernia as a result of his period of service. The Veteran has not been afforded VA examination for his claimed right side inguinal hernia disorder as there is no credible evidence of the claimed condition during service and no competent and credible evidence suggesting that the claimed condition is related to service. The Veteran has not provided any lay evidence as to an in-service injury or onset of right side inguinal hernia. Rather, only the Veteran’s general conclusory statement that he has a claimed right side inguinal hernia is related to service is of record, which does not rise to the level of an indication that the claimed disability is associated with service. Thus, a VA examination is not necessary here. 38 C.F.R. § 3.159 (c)(4) (2018); see McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would “eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every Veteran’s disability case”). While the Veteran believes he has a current right side inguinal hernia that is related to his period of service, such are general assertion, and he has not provided evidence of in-service disease or injury. Moreover, the etiology of inguinal hernia, and whether the condition was incurred or aggravated by service, falls outside the realm of common knowledge of a lay person. The Veteran lacks the medical expertise to opine as to the etiology of his right side inguinal hernia. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, competent evidence linking the claimed disability to service is needed to substantiate the claim. Here, there is no competent medical opinion of record linking any current hernia to service. In any event, even the Veteran’s own statements regarding this issue are very unclear as he does not associate this issue to any event or injury during service. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55-56. 4. Entitlement to service connection for a right shoulder disorder The Veteran seeks entitlement to service connection for a right shoulder disorder. He contends that he has a current right shoulder disorder as the result of an in-service injury when he fractured his right scapula. 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 current diagnoses of supraspinatus tendinopathy and arthritis in the right shoulder joint, and evidence shows in-service treatment for a right scapula fracture from a motor vehicle accident in 1963, the preponderance of the evidence weighs against finding that the Veteran’s current right shoulder diagnoses began during service or are 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). Service treatment records show that the Veteran was injured during a motor vehicle accident (MVA) in July 1963. He complained of right shoulder pain and clinical examination revealed findings of a closed fracture of right scapula. The Veteran’s right scapula fracture was treated conservatively. Two days after the accident, the service treatment records show the Veteran complained of inability to extend right hand/wrist and he was assessed with contusion of the right radial nerve. Subsequent service treatment records do not show complaints of right shoulder problems. The Veteran did complain of right hand/wrist problems in May 1966, but a wrist x-ray revealed no abnormalities. The Veteran’s April 1979 service examination shows that his bilateral upper extremities were evaluated as normal, and he specifically denied any shoulder or nerve problems on the associated report of medical history. The first post-service medical evidence of right shoulder problems comes from a February 2007 private treatment record that shows the Veteran presented with complaints of bilateral shoulder pain that had occurred on and off for years. It was noted that the Veteran was employed as a postal worker and his work had required frequent use of his shoulders over the years. The Veteran reported a history of right shoulder pain for the last ten years, which had recently worsened. He also reported a remote history of a MVA in service from which he sustained a scapula fracture that had healed and his right shoulder had been “okay” for many years. X-ray film revealed evidence of mild osteoarthritis of the acromioclavicular (AC) joint. The Veteran was afforded a July 2016 VA compensation examination in conjunction with his claim. The VA examiner found that the Veteran had current diagnoses of supraspinatus tendinopathy and arthritis in the right shoulder joint based on clinical evaluation. The Veteran denied any problems in his right wrist and hands, and the VA examiner noted he had normal hand and wrist examinations. Private treatment records show the Veteran was not diagnosed with arthritis in the right shoulder joint until 2007, which comes decades after his separation from service. Further, the July 2016 VA examiner indicated that right shoulder supraspinatus tendinopathy and arthritis were likely unrelated to service to include in-service right scapula fracture in 1963. In support of this medical conclusion, the VA examiner noted that, after the Veteran was diagnosed with fracture of the right scapula and contusion of right radial nerve 1963, he continued to serve on active duty until 1980 without complaints of right shoulder problems. On his April 1979 report of medical history, the Veteran specifically denied any shoulder or nerve problems more than 16 years after the MVA injury. The VA examiner further noted that the Veteran’s current diagnoses of supraspinatus tendinopathy and AC joint arthritis are not consistent with a healed scapula fracture. Rather, the VA examiner found that the Veteran’s current right shoulder disorders are most likely related to more recent acute injury, rigors of his post-service employment as a postal worker, and the effects of aging. The VA examiner cited to medical literature in support of his medical conclusion. The Board finds that the VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, there is no medical conclusion to the contrary. While the Veteran believes his current right shoulder disorder is related to an in-service injury, including injury sustained from 1963 MVA, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the 2016 VA medical conclusion. The Board has also considered whether service connection for the Veteran’s arthritis of the right shoulder joint is warranted on a presumptive basis for chronic diseases. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). While the Veteran has arthritis of the right shoulder joint, which is a chronic disease under 38 C.F.R. § 3.309(a), it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. Private treatment records show the Veteran was not diagnosed with arthritis in the right shoulder joint until 2007, which comes more than two decades after his separation from service and many years outside of the applicable presumptive period. While the Veteran is competent to report experiencing symptoms of shoulder pain since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s current reports are inconsistent with his previous report of the onset of his current right shoulder pain in contemporaneous treatment records. In this regard, the Veteran specifically denied any shoulder problems on his April 1979 report of medical history and the February 2007 private treatment record shows the Veteran reported that his right shoulder was “okay” for years following his period of service. Rather, the Veteran had reported to his treating physician that his current right shoulder problems began about 10 years ago (or approximately 1997), which is well outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to intercurrent causes after service. The VA examiner determined that the Veteran’s right shoulder symptoms were more likely due to post-service injuries and the effects of aging. Further, the 2007 private treatment records also indicated that the Veteran’s current right shoulder problem was attributable to his post-service occupation as a postal worker. Given the above, the Board finds that the most probative evidence of record does not show that it is at least as likely as not that the Veteran’s current right shoulder disorder had its onset during, or is otherwise etiologically related to, his active service. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim therefore must be denied. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49 (1990).   REASONS FOR REMAND 1. Entitlement to service connection for benign prostate hypertrophy is remanded. The Veteran seeks entitlement to service connection for a prostate condition. He has a current diagnosis of benign prostate hypertrophy. His service treatment records show he was treated for complaints of urethral discharge on several occasions, and there is a diagnosis of prostatitis in March 1977, as well as suspect nodule of the right lobe of prostate in October 1977. While the July 2016 VA examiner addressed whether the Veteran’s benign prostate hypertrophy was related to suspect nodule of the right lobe of prostate in October 1977, the VA examiner did not consider the in-service treatment for urethral discharge and prostatitis in March 1977. Moreover, no medical opinion has been obtained to address whether there is a link between the Veteran’s benign prostatic hypertrophy and his exposure to herbicide agents. A remand is needed to obtain an addendum medical opinion for the claim. 2. Entitlement to service connection for atrial fibrillation is remanded. The Veteran seeks entitlement to service connection for atrial fibrillation. Post-service medical records show a current diagnosis of atrial fibrillation, and the Veteran’s service treatment records show finding of first degree AV block based on an October 1977 clinical evaluation. While the record contains a May 2016 VA medical opinion addressing the etiology of atrial fibrillation, the opinion does not address the in-service finding of first degree AV block with respect to atrial fibrillation. A remand is needed to obtain an addendum VA medical opinion on whether atrial fibrillation is related to the in-service finding of first degree AV block. 3. Entitlement to service connection for congestive heart failure is remand. The July 2016 VA examiner noted that congestive heart failure was likely associated with atrial fibrillation. Thus, the service connection claim for congestive heart failure is inextricably intertwined with the outcome of the claim for service connection for atrial fibrillation. Accordingly, adjudication of this claim must be deferred pending completion of the necessary additional development concerning the claim for service connection for atrial fibrillation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Include in the claims file any VA medical evidence not currently of record. 2. Obtain an addendum opinion regarding whether benign prostatic hypertrophy is at least as likely as not (i.e., probability of 50 percent or greater) related to in-service treatment for prostatitis, and/or related to his presumed exposure to herbicide agents. 3. Obtain an addendum opinion regarding whether the atrial fibrillation is at least as likely as not related to in-service finding first degree AV block. (Continued on the next page)   Please explain in detail any opinion provided. CHRISTOPHER MCENTEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel