Citation Nr: 18106958 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 10-24 261 DATE: June 1, 2018 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for a right lung disability; to that extent only, the appeal is granted. New and material evidence has been received to reopen the claim of entitlement to service connection for hypertension; to that extent only, the appeal is granted. Service connection for a right lung disability is denied. Service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s service connection claims for hypertension and a lung disorder was initially denied by a March 2004 rating decision. The Veteran did not appeal this decision. 2. Evidence received since the March 2004 rating decision relates to an unestablished fact and raises a reasonable possibility of substantiating the claims. 3. The Veteran’s diagnosed lung disorders were not incurred in, and are not otherwise related to, his active service. 4. The Veteran’s hypertension was not incurred during active duty and is not otherwise related to military service. CONCLUSIONS OF LAW 1. The criteria to reopen the claim of service connection for a right lung disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria to reopen the claim of service connection for hypertension have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a right lung disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.07, 3.09. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.07, 3.09. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1973 to November 1974. This case came before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In January 2012, the Veteran testified on the issues of whether new and material evidence has been received to reopen the claims of service connection for a right lung disability and hypertension at a Travel Board hearing before one of the undersigned Veterans Law Judges (VLJs). A transcript of that hearing is of record. In September 2013, the Board remanded the issues on appeal for adjudication of the inextricably intertwined issue of whether there is clear and unmistakable error (CUE) in a March 2004 rating decision that denied service connection for a lung disorder and hypertension. In September 2016, the Board remanded the case for compliance with the prior remand. In an October 2016 rating decision, the RO adjudicated the issue of whether there is CUE in a March 2004 rating decision that denied service connection for a lung disorder and hypertension. The Veteran perfected an appeal of this issue by filing a timely VA Form 9 in March 2017. In July 2017, the Board remanded the case to afford the Veteran a Board hearing to address the issue of CUE in the March 2004 rating decision, which was not addressed in the January 2012 hearing. In November 2017, the Veteran testified at a videoconference hearing before a different undersigned VLJ. A transcript of that hearing is also of record. The hearing addressed the issues of whether new and material evidence has been received to reopen the claims of service connection for a right lung disability and hypertension; and whether there is CUE in a March 2004 rating decision that denied service connection for a lung disorder and hypertension. A VLJ who conducts a hearing must participate in making the final determination of the claim involved. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. By law, appeals may be assigned only to an individual VLJ or to a panel of not less than three members. 38 U.S.C. § 7102 (a). Accordingly, a third VLJ has been assigned to participate in a panel decision for this case. The Veteran was offered the opportunity to testify before a third VLJ at the November 2017 hearing; he waived this right on the record. Arneson v. Shinseki, 24 Vet. App. 379 (2011). The issue of whether there is CUE in the March 2004 rating decision that denied service connection for a lung disorder and hypertension is addressed in a separate decision.   Whether new and material evidence has been received to reopen claims of entitlement to service connection for a right lung disability and hypertension The Veteran seeks to reopen claims of service connection for a right lung disability and hypertension, last denied in an unappealed March 2004 rating decision. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision, or new and material evidence is received during the appeal period after the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156 (b), 20.302, 20.1103. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. See 38 U.S.C. § 5108; Knightly v. Brown, 6 Vet. App. 200 (1994). Although the November 2009 rating decision on appeal reopened and denied the claims on the merits, the Board is required to address this aspect of the appeal despite the RO’s findings. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). Since the March 2004 rating decision, new medical and lay evidence has been associated with the claims file. Specifically, VA and Social Security Administration (SSA) medical records, and the Veteran’s Board hearing testimony have been added to the claims file. These records relate to previously unestablished facts. Further, the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. For these reasons, reopening of the previously denied claims of service connection for a lung disorder and hypertension is warranted. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). The Board will proceed to address the underlying merits of the claim below. The Veteran is not prejudiced by this action as the RO has also reopened and adjudicated these issues on the underlying merits. Hickson v. Shinseki, 23 Vet. App. 394 (2010). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus 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 many cases, medical evidence is required to meet the requirement that the evidence be “competent.” However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination that it is “medical in nature” and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). For those conditions explicitly recognized as “chronic” under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection for certain chronic disorders may also be established based upon a legal “presumption” by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. Wegener’s granulomatosis is not recognized as a chronic disease under 38 C.F.R. § 3.309(a). Hypertension is a chronic disability and a nexus to service is presumed if it manifests to a compensable degree within a year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For VA compensation purposes, the term “hypertension” means that the diastolic blood pressure is predominantly 90 mm. or greater or systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 n.1. Service connection for conditions claimed to be due to exposure to ionizing radiation can be established in any of three ways. See Hilkert v. West, 12 Vet. App. 145 (1999); aff’d, 232 F.3d 908 (Fed. Cir. 2000); McGuire v. West, 11 Vet. App. 274, 277 (1998); Hardin v. West, 11 Vet. App. 74, 77 (1998); Davis v. Brown, 10 Vet. App. 209, 211 (1997); Rucker v. Brown, 10 Vet. App. 67, 71 (1997). First, there are diseases that are presumptively service connected in “radiation-exposed veterans” under 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d). Second, service connection can be established under 38 C.F.R. § 3.303(d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, direct service connection can be established under 38 C.F.R. § 3.303(d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Diseases presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2) are: leukemia (other than chronic lymphocytic leukemia), cancer of the thyroid, cancer of the breast, cancer of the pharynx, cancer of the esophagus, cancer of the stomach, cancer of the small intestine, cancer of the pancreas, multiple myeloma, lymphomas (except Hodgkin’s disease), cancer of the bile ducts, cancer of the gall bladder, primary liver cancer (except if cirrhosis or hepatitis B is indicated), cancer of the salivary glands, cancer of the urinary tract, bronchiolo-alveolar carcinoma, cancer of the bone, cancer of the brain, cancer of the colon, cancer of the lung, and cancer of the ovary. 38 U.S.C. § 1112(c)(2); 38 C.F.R. § 3.309(d). If a claimant does not qualify as a “radiation-exposed veteran” under 38 C.F.R. § 3.309(d)(3) and/or does not suffer from one of the presumptive conditions listed in 38 C.F.R. § 3.309(d)(2), the veteran may still benefit from the special development procedures provided in 38 C.F.R. § 3.311 if the veteran suffers from a radiogenic disease and claims exposure to ionizing radiation in service. In this case, the Veteran does not have a “radiogenic disease” listed at 38 C.F.R. § 3.311. Right Lung Disability The Veteran asserts that he was exposed to asbestos due to his military occupational specialty (MOS) as duty foreman and subsequently developed a right lung disability. Alternatively, he contends that his lung disability developed due to in-service exposure to ionizing radiation. For the reasons that follow, the Board finds that service connection is not warranted. The Veteran has been diagnosed with Wegener’s granulomatosis, other pulmonary embolism and infarction, pulmonary connective tissue disease, and deep venous thrombosis. Thus, the first element of service connection on a direct basis is met. Turning to the second element, the Veteran’s service treatment records (STRs) are negative for complaints, treatment or diagnosis related to a lung disorder. The August 1974 separation exam report shows that clinical evaluation of the lungs and chest was normal. With respect to the reported exposure to asbestos in service, the VA adjudication manual instructs that this may be established on a facts-found basis, see M21-1 IV.ii.1.l.3.c. There are no regulatory presumptions relating to such exposure. In this case, the evidence in support of exposure is simply the Veteran’s plain assertion. However, his service records do not corroborate such exposure. Also, the Veteran’s military occupational specialties of cook and duty foreman do not necessarily correspond to an MOS which VA has found to have at least a minimal probability of exposure. See M21-1 IV.ii.1.3.d (“If a Veteran from another branch of service... held one of the occupations listed below, conceded the probability of exposure accordingly.”). To the extent that he is competent to relate exposure to asbestos during service, the Board finds that this lay evidence is outweighed by the absence of documentation of such exposure in his personnel records and by his working an MOS that VA has not found to have at least a minimal probability of asbestos exposure. Bardwell v. Shinseki, 24 Vet. App. 36, 39-40 (2010); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (generally distinguishing between credibility and probative value and holding that while the absence of contemporaneous records cannot be used to impugn credibility, once competency and credibility are established the absence of contemporaneous records may be weighed against the lay evidence). There is no additional evidence weighing in favor of exposure to asbestos during service. Regarding the Veteran’s claim of in-service exposure to ionizing radiation, there is no competent evidence showing exposure to radiation in service. The record does not reflect a diagnosis of a disease presumptively service-connected for radiation-exposed veterans under the provisions of 38 U.S.C. § 1112(c) and 38 C.F.R. § 3.309(d)(2), or a radiogenic disease under 38 C.F.R. § 3.311(b)(2). The Board thus concludes that the Veteran is not entitled to presumptive service connection for a lung disability as a “radiation-exposed veteran” under Section 3.309(d) or a radiogenic disease under 38 C.F.R. § 3.311(b). In the absence of competent and credible evidence of either radiation or asbestos exposure in service; or onset of a lung disease therein; the second element of direct service connection is not met. To the extent that the Veteran has otherwise asserted that his lung disability is related to his active service, the Board finds he is not competent to provide a medical nexus because he does not possess the requisite medical training or expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no other competent evidence that establishes a causal connection between the current lung disability and service. Post-service treatment records reflect the Veteran’s Wegener’s granulomatosis was first diagnosed approximately 29 years after his discharge from service and the record does not show competent medical evidence indicating that Wegener’s granulomatosis manifested within one year of his discharge from service or during service to a sufficient degree to identify the disease entity. Additionally, there is no competent medical evidence of a “nexus” between the Veteran’s military service and Wegener’s granulomatosis. The Veteran was afforded a SSA medical examination in March 2004. The examiner noted that he first began experiencing dyspnea on exertion, orthopnea, fatigue, and swelling of his hands and feet in early to mid-2003 and by October 2003 he was diagnosed with Wegener’s granulomatosis and associated pulmonary renal syndrome. Further, it was noted that he had a known right pulmonary mass due to the Wegener’s disease. In addition, he was hospitalized for right-sided deep venous thrombosis in December 2003 and was hospitalized in February 2004 for a pulmonary embolus and recurrent right-sided deep venous thrombosis. None of these records indicate there may be a relationship between any current lung disability and the Veteran’s active service. In summary, the preponderance of the evidence is against the Veteran’s claim and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for a right lung disability is not warranted. Hypertension The Veteran asserts that he had high blood pressure prior to enlistment. In addition, he contends that during service his blood pressure progressed to hypertension. The Veteran has a current diagnosis of hypertension. Accordingly, the first element of service connection is established. Regarding the second element of service connection, when determining whether a disability or disease was incurred in service, or preexisted service, a veteran shall be presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment; or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran is presumed to have been sound with respect to his blood pressure upon entrance to service. To rebut the presumption of soundness, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). The standard of proof for rebutting the presumption of soundness is not merely evidence that is cogent and compelling, or merely a sufficient showing, but evidence that is clear and unmistakable - that it is undebatable. Id. Only those conditions recorded in examination reports can be considered as “noted,” 38 C.F.R. § 3.304(b), and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1). Here, the Board finds that the presumption of soundness is applicable and has not been rebutted. Dr. Pena stated in February 1973 that the Veteran had labile blood pressure and that the slight elevation in blood pressure was due to apprehension. He did not diagnose hypertension. The February 1973 enlistment examination report does not include a notation of hypertension. It was noted that 3-day blood pressure readings were acceptable. Also, contrary to the Veteran’s assertion that he was diagnosed with hypertension in service, STRs do not reflect a diagnosis of hypertension. The Veteran did have elevated blood pressure readings in service such as, 136/82, 134/84, 130/80, and 140/76 in March 1973; and 140/80 in August 1974. Thus, the Board concedes element two as to the presence of elevated blood pressure readings during service, but not as to the presence of hypertension. However, the Veteran’s claim fails on the third element, as there is no competent evidence of a nexus between his current hypertension and his period of active duty. Again, there was no diagnosis of hypertension in service. The August 1974 separation examination report does not include a diagnosis of hypertension and it was noted that he did not have any defects or diagnoses. Further, clinical evaluation of the heart was normal. To the extent that the Veteran himself asserts that hypertension is related to his period of active service, the Board finds that while he may be competent to diagnose hypertension (assuming he can obtain properly measured blood pressure readings on a number of occasions), he is not competent to opine as to its etiology, as to do so requires medical expertise he does not possess. See Jandreau, 492 F.3d at 1376-77. There is no other competent evidence of record that suggests or establishes that current hypertension had onset in service, or is related to service. Regarding presumptive service connection under 38 C.F.R. §§ 3.307, 3.309, a SSA medical examiner noted in March 2004 that hypertension was initially diagnosed in 2002, which is approximately 28 years after service and well past the period for presumptive service connection. Thus, for reasons outlined above, the preponderance of the evidence is against the Veteran’s service connection claim for hypertension. Accordingly, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. Service connection for hypertension is not warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals A.J. Spector Acting Veterans Law Judge Board of Veterans’ Appeals D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Vieux