Citation Nr: 19168294 Decision Date: 09/05/19 Archive Date: 09/04/19 DOCKET NO. 18-17 707 DATE: September 5, 2019 ORDER Entitlement to service connection for a cardiovascular disorder, to include congestive heart failure and a disability manifested by atrial fibrillation, is denied. REMANDED Entitlement to service connection for a lumbosacral strain is remanded. Entitlement to service connection for degenerative changes of the right shoulder is remanded. Entitlement to service connection for degenerative changes of the left shoulder is remanded. Entitlement to serv ice connection for a right hand disability is remanded. Entitlement to service connection for a left hand disability is remanded. FINDING OF FACT The Veteran's cardiovascular disorders, to include congestive heart failure and a disability manifested by atrial fibrillation, were not present in service or until many years thereafter and are not related to service or to an incident originating during service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cardiovascular disorder have not been met. 38 U.S.C. §§ 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1960 to May 1961 and from October 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) from an October 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Service Connection—Cardiovascular Disorder Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310 (a). Establishing service connection on a secondary basis requires evidence to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be granted where disability is proximately due to or the result of already service-connected disability. 38 C.F.R. § 3.310. The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). A medical examination is inadequate where the examiner impermissibly ignored the appellant's lay assertions regarding onset of symptoms or injury during service. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, can ultimately be considered competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran is competent to report her symptoms, as a layman; however, her opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that he developed a cardiovascular disorder due to high stress, anxiety and heavy training while in service. There is no competent evidence of a diagnosis of a cardiovascular disorder within one year after service separation in August 1962. Thus, presumptive service connection under the provisions of 38 C.F.R. § 3.307(a) is not warranted. The medical record establishes that the Veteran has been diagnosed with congestive heart failure and atrial fibrillation. Therefore, the first element for service connection has been met. However, the Board finds that the weight of the competent and credible evidence establishes that the Veteran's atrial fibrillation and congestive heart failure first manifested many years after service separation and are not caused by, or otherwise related to, his active military service. Review of the record shows that during the Veteran's period of service, there were no findings of symptoms or diagnosis of a cardiovascular disorder. The Veteran did not have congestive heart failure or a disability manifested by atrial fibrillation, or any other cardiovascular disorder, at any point during his active duty service. Moreover, there is no competent evidence to establish a nexus between the Veteran’s congestive heart failure or his disability manifested by atrial fibrillation—and any documented event or incident of service. There is no competent and credible medical evidence that links the claimed diseases to service. The Veteran's own assertions that the atrial fibrillation or congestive heart failure are related to service are afforded no probative weight in the absence of evidence that he has the expertise to render opinions about medical matters. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Diagnosing a cardiovascular disease requires specialized training and medical diagnostic testing for a determination as to diagnosis and causation, and is not susceptible of lay opinions on etiology. There is no evidence that the Veteran has medical expertise. Therefore, the Board finds that his lay statements of record cannot be accepted as competent evidence sufficient to establish service connection for heart disease. In light of the above, the Board finds that the preponderance of the evidence is against a finding that the atrial fibrillation and congestive heart failure are related to service. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. The claims for service connection for a cardiovascular disorder on any basis is denied. A VA medical opinion and examination were not provided for these issues. The Federal Circuit Court of Appeals (Federal Circuit) has recognized that there is not a duty to provide an examination in every case. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The record in this case is negative for any indication, other than the Veteran's own general assertion, that the claimed disabilities are related to active service. The Veteran did not provide lay or medical evidence of the disabilities in active service or symptoms or disease in active service. The service treatment records do not document cardiovascular disorders. The Veteran's sole assertion that he believes that service connection for a cardiovascular disorder is warranted is insufficient to trigger VA's duty to provide an examination with an opinion. There is no evidence of the claimed disabilities in active service or any indication of an association to service. There is sufficient competent evidence on file for the Board to make a decision on the claim. As such, VA's duty to provide an examination with an opinion is not triggered. Waters, 601 F.3d at 1274. REASONS FOR REMAND Service connection for a lumbosacral strain Service connection for degenerative changes of the right shoulder Service connection for degenerative changes of the left shoulder The Veteran claims that he has a lumbar spine and bilateral shoulder disabilities caused by his service. Regrettably, a remand is necessary for further evidentiary development of these claims. The Veteran provided a lay statement in his March 2018 Form 9 Appeal to the Board, in which he claimed that he fell about 10 feet in a ravine while training and hurt his shoulder and back. The Veteran also acknowledged that he did not report this incident due to embarrassment. In the Veteran’s May 2019 appellate brief, the representative indicated that Veteran claims that in-service falls, lifting and carrying heavy equipment and weapons contributed to his current disabilities. The Board notes the Veteran is competent to report an in-service injury and the observable symptoms that have persisted since the injury. Jandreau, 492 F.3d at 1372. The Veteran has not been provided VA examinations for these claimed disabilities. As the Veteran's treatment records indicate that he has a lumbosacral strain and degenerative changes to his bilateral shoulders that could be related to service, the Board finds that medical examinations with opinions are necessary to decide the claims. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran VA examinations to determine the nature and etiology of the lumbar spine and bilateral shoulder disabilities. Service connection for a right hand disability Service connection for a left hand disability The Veteran claims that he has a bilateral hand disability which was caused by his service. Regrettably, a remand is necessary for further evidentiary development of these claims. In the Veteran’s May 2019 appellate brief, the representative indicated that Veteran claims that in-service falls, lifting and carrying heavy equipment and weapons contributed to his current disabilities. In this regard, the Board notes that the Veteran is competent to report an in-service injury and the observable symptoms that have persisted since the injury. Jandreau, 492 F.3d at 1372. The Veteran has not been provided a VA examination for this claimed bilateral hand disability. As the Veteran's treatment records indicate that he could have a bilateral hand disability related to service or to another claimed disability, the Board finds that a medical examination with an opinion are necessary to decide the claims. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). Specifically, a remand is required to afford the Veteran a VA examination to determine the nature and etiology of his claimed bilateral hand disability. The matters are REMANDED for the following action: 1. Any outstanding private and VA treatment records should be associated with the claims file. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. The Veteran must be afforded a VA examination by an examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed lumbar spine, bilateral shoulder, and bilateral hand disabilities. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then: (a) Identify all disabilities relating to the Veteran's: (i) Lumbar spine (ii) Left shoulder (iii) Right shoulder (iv) Left hand (v) Right hand (b) For all disabilities identified in any subpart of part (a), if the Veteran's claimed disabilities are not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's pain on his ability to stand, walk, run, and maintain balance. (c) For all disabilities identified in any subpart of part (a) and functional impairments noted in part (b), provide an opinion as to whether it is at least as likely as not proximately due to or the result of any incident of the Veteran's service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is considered competent to be able to report injuries and symptoms, and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.