Citation Nr: 18106977 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 13-19 572 DATE: June 1, 2018 ORDER Entitlement to service connection for a neurological disability manifested by syncopal episodes, to include as due to an undiagnosed illness is denied. Entitlement to service connection for a cardiac disability, to include as due to an undiagnosed illness, is denied. FINDINGS OF FACT 1. A neurological disability manifested by syncopal episodes, to include as due to an undiagnosed illness, was not manifest in service and is not related to service. 2. The Veteran does not have a cardiac disability. CONCLUSIONS OF LAW 1. A neurological disability manifested by syncopal episodes was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2017). 2. A cardiac disability was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1117, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.317 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from October 1987 to April 1988 and served in the U.S. Marine Corps Reserves from January 1991 to June 1995, with a period of active duty in Southwest Asia from January to May 1991. The Veterans Law Judge (VLJ) at the prior hearing is no longer with the Board. The Veteran initially requested a new hearing before a VLJ, but withdraw the request in a document dated in February 2018. Compliance with Prior Remand The Veteran’s claim has been remanded twice, most recently in December 2016 for obtaining VA records and a new VA examination. A new examination was obtained with an addendum opinion in February and April 2017 and VA records have been associated with the file. For these reasons, the Board’s prior remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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 or injury was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Competent lay evidence means 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); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511–12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For veterans who served in the Southwest Asia theater of operations during the Persian Gulf War, service connection may be established for a qualifying chronic disability that cannot be attributed to a known clinical diagnosis, specifically for an undiagnosed illness. See 38 U.S.C. § 1117 (2012); 38 C.F.R. § 3.317 (2017). Such disability must become manifest either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317 (2017) provides that “objective indications of a qualifying chronic disability” are required and includes an example list (that is not limited to the examples provided) of signs or symptoms that may be manifestations of undiagnosed illness, which includes muscle pain, joint pain, and neurological signs and symptoms. A claimant’s signs or symptoms need not be shown by medical evidence; however, some objective indications of disability are required. 38 C.F.R. § 3.317 (a). Objective indications of chronic disability include both signs, in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317 (a)(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; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317 (b). 1. Neurological (syncopal episodes) disability The Veteran contends his disability is due to medications and vaccinations he received in service in the Persian Gulf War and due to possible exposure to chemicals. The Veteran has had several VA examinations, the most recently in February 2017 with an addendum opinion in July 2017. The examiner noted that the Veteran had a vasovagal reaction, i.e. fainting, that was neurological in nature. Based on the medical records, it appears this occurred one time in 2008. See, e.g. July 2017 addendum opinion (stating the examiner reviewed the “reviewed records again including when he was hospitalized for this condition in 2008.”). It appears from the record that this incident was transitory and resolved, with only one incident documented in 2008. However, as the examiner in the July 2017 and February 2016 opinions did not rule out a chronic recurrent vasovagal syncope disability, only found that it would not be caused by service, the Board accepts that there is some type of vasovagal syncope disability or residuals during the period on appeal. A prior examination in February 2016 noted that the Veteran had “occasional symptoms of near syncope but no recent syncopal episodes.” Therefore, there was some type of ongoing symptoms. The July 2017 examiner’s medical opinion was that the Veteran had vasovagal syncope disability that was first shown after a thorough examination for cardiac disabilities in 2008 with no other issues found. The Veteran had vasovagal syncope which the examiner believed was related to vagal nerve stimulation. The examiner noted that vasovagal syncope disability is not an uncommon condition, without an exact known cause. There was no literature or date to suggest the vaccination or pills or exposure to chemicals would cause recurrent chronic vasovagal syncope. The examiner noted that syncope physiologic response to stimulation of the vagus nerve common in certain situations such as giving blood, seeing blood, getting injections, standing or laughing. The Veteran was hospitalized in 2008 after laughing and standing. Echo-cardiogram, MRI, and EEG were all normal with no evidence of seizures. Regarding the Veteran’s claim that his vasovagal syncope disability was due to vaccinations or pills taken as prophylaxis against chemical attacks in service, the examiner stated in the July 2017 addendum opinion, that “[i]t is certainly possible that he may have had a reaction to one of those medications, however that would be a transient episode and would not result in long term recurrent vasovagal syncope. And it would certainly not take many years (13 years later) to manifest symptoms.” The Board has considered the Veteran’s theory that the vasovagal syncope disability is a symptom or manifestation of an undiagnosed or medically unexplained chronic multi-symptom illness or is otherwise related to service. However, the medical evidence identifying and diagnosing the condition as vasovagal syncope, associated with vagal nerve stimulation. While this disability is neurological, the examiner gave a known clinical diagnosis and a probable cause (standing and laughing), it cannot be considered undiagnosed illnesses or qualifying chronic disabilities for entitlement to service connection based on the Veteran’s service in the Persian Gulf. The Veteran submitted an unclassified U.S. army intelligence report on Operation Desert Shield regarding serious oil fire, gas, and smoke dangers. The article is generic, and does not address the specific facts of the Veteran’s case, and does not provide any evidence regarding nexus between the Veteran’s syncope disability and service. Therefore, while this document has been considered, it is not relevant to the necessary element to substantiate the claim. Based the competent and credible evidence of record, the Board finds that the vasovagal syncope disability has been competently and credibly associated with a known diagnosis and is unrelated to service and therefore service connection based on the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service is not warranted. 38 C.F.R. § 3.317. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317, but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board has considered whether vasovagal syncope disability could otherwise be due to service. All the evidence, including the Veteran’s statements in his Board hearing and on documents when making his claim and the medical evidence are consistent. He did not report relevant issues in service or for years after he left the reserves. On the Veteran’s last in-service report of medical history, an annual report dated in September 1993, the Veteran noted “no” for dizziness or fainting spells. The September 1993 annual examination noted “normal” for all areas, with a notation of a knee injury and no report of fainting or blackouts. The Veteran first stated he had “blackouts” “immediately after the war,” but it is unclear if he meant during service. Records from March 2008 report a syncopal episode and fainting. The hospital records indicate his neurological examination was normal and he had no prior history of syncope or seizures. There is no evidence of emergence in service or causal relationship to service. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Cardiac disability The Veteran claims he has a cardiac disability separate from the neurological syncopal episodes. During the February 2015 Board hearing, the Veteran reported he suffered “heart problems” and that was hospitalized at one point on the advice of his family doctor after the doctor saw something in the EKG. He continues to see a cardiologist, but after numerous testing he was only found to have an irregular heartbeat. He also takes blood pressure and cholesterol medication. He reported his heart issues started in service, specifically that they are due to shots, medications, and potential exposure to deadly chemical in Desert Storm. The question for the Board is whether the Veteran has a current cardiac disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Persian Gulf law has two elements: (1) an undiagnosed illness and (2) evidence of a chronic disability. 38 C.F.R. § 3.317(a)(1) (“VA will pay compensation . . . to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability . . . .”); Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004). Alternatively, the Veteran would need to show disability, i.e., impairment, under the statutes governing compensation in either peacetime or wartime service, as Veteran had active duty during time periods covered by both laws. 38 U.S.C. §§ 1110, 1131; see Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991) (defining disability as “inability to pursue an occupation because of physical or mental impairment”); Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 at 13 (Fed. Cir. Apr. 3, 2018) (“[D]isability... refers to functional impairment of earning capacity.”) Under any of these laws, the Veteran must show a cardiologic disability. The Board concludes that the Veteran does not have a current cardiac disability and has not had one at any time during the pendency of the claim or recent to the filing of the claim. The Veteran reported that in 2004 he had catherization after an EKG showed some type of abnormality. The results after catherization were normal. Private treatment records indicate this event occurred in April 2003 after the Veteran had chest pain and was placed on Protonix, which is used to treat GERD (the Veteran is service-connected for GERD), and his symptoms improved drastically. The Veteran has hypertension and an irregular heartbeat. However, the Veteran has at no point stated his claim was for hypertension. His initial December 2011 claim requested service connection for “Gulf War illnesses – heart condition.” He also has never been diagnosed with any type of disability associated with an irregular heartbeat. At the February 2015 Board hearing, the Veteran noted he had an irregular heartbeat. His VA examinations in February 2016, February 2017, and medical records noted largely normal heartbeat. The Veteran has had several VA examinations, all of which found the Veteran did not have a cardiac disability. See, e.g., July 2017 VA examination (noting the Veteran’s symptoms were neurological). The February 2016 VA heart conditions examinations likewise reported hypertension and an abnormal heartbeat, but his physical examination showed normal and regular heartbeat and a EKG in 2007 showed normal heart, an echocardiogram was normal, a Holter monitor was normal except for four premature ventricular contraction, no evidence of ischemia or infarction, and the examiner found that the Veteran “[d]id not have any cardiac issues.” The Veteran believes he has a cardiac disability and was told he had an abnormal EKG. He may truly believe his syncope disability is cardiac in nature and may have been told something to this effect at some point during treatment for a syncopal episode. However, the Veteran’s treating cardiologist has not found a cardiac disability, as the Veteran himself stated. See February 2015 Board hearing (“I had to see a specialist, a cardiologist, and I’ve been continually seeing the cardiologist to the day . . . and I’ve had numerous stress tests done, numerous testing done with the heart, . . . but other than an irregular heartbeat [the cardiologist] hasn’t really diagnosed me with any heart valve problem or any kind of problem in that nature . . . .”). The Veteran is competent to report what he was told, which in this case at least includes that there was an EKG showed an abnormality and the Veteran had a heart catherization. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Repeated testing from 2008 onwards found that the Veteran did not have a cardiological disability. Therefore, while the Veteran has been under care of a cardiologist, has some type of abnormality noted in diagnostic testing, and his past medical history of heart catherization, his statements regarding the existence of a cardiac disability are not credible and is entitled to less probative value when compared to the medical evidence, including the most recent VA examinations. These show the Veteran does not have a cardiac disability after a thorough workup and extensive diagnostic testing. In reaching this determination, the Board has considered the provisions of 38 C.F.R. § 3.303(b). As noted in the regulation, the rule regarding chronicity and continuity does not mean that any abnormality of heart action or heart sound will permit service connection of disease of the heart first shown as a clear-cut clinical entity at some later date. Here, there is only abnormality of heart action which does not rise to the level of disability under any theory of entitlement. Consequently, the Board gives more probative weight to the competent medical evidence, namely the VA examinations and opinions dated in 2016 and 2017. Based on the above, the preponderance of the evidence is against the claim for a cardiac disability. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54–56 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel