Citation Nr: 20037537 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 09-48 611 DATE: June 2, 2020 ORDER Service connection for a heart disorder, to include non-obstructive coronary artery disease and non-ischemic cardiomyopathy is denied. Service connection for hypertension, to include as secondary to a heart disorder is denied. Service connection for residuals of a transient ischemic attack (TIA), to include as secondary to a heart disorder is denied. FINDINGS OF FACT 1. The Veteran’s heart disorder was not incurred in or caused by service. 2. The Veteran’s hypertension was not incurred in or caused by service. 3. The Veteran’s hypertension was not caused by his heart disorder. 4. The Veteran’s residuals of a transient ischemic attack were not incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(d) (2019). 2. The criteria to establish entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a), 3.310 (2019). 3. The criteria to establish entitlement to service connection for residuals of a transient ischemic attack have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303(b), (d), 3.307(a)(3), 3.309(a), 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from September 1981 to February 1989 and in the U.S. Marine Corps Reserve from November 1990 to March 1991. The Veteran had periods of inactive duty for training (INACDUTRA) in the Tennessee Air National Guard from July 1997 to August 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2009 rating decision of the Nashville, Tennessee Regional Office (RO). In November 2010, the Veteran was afforded a videoconference hearing before a Veterans Law Judge (VLJ) no longer employed at the Board. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In an August 2016 letter, the Board notified the Veteran that the VLJ who conducted the November 2010 hearing was no longer employed at the Board and that the Veteran had a right to an additional hearing before another VLJ. The letter advised the Veteran to respond within 30 days. The Veteran did not respond. In March 2011, August 2015, May 2017 and January 2019, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s January 2019 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for a current disability arising from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012). 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) (2019). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Heart disorder The Veteran contends that an in-service chest radiograph that revealed cardiomegaly and left ventricular enlargement was a sign or symptom of his current heart disorder that was diagnosed post-service. An October 1984 service treatment record (STR) reflects the Veteran’s report of experiencing dizziness. However, a service medical examiner indicated that the Veteran’s heart sound and blood pressure were normal. A January 1989 service chest radiograph revealed cardiomegaly and left ventricular enlargement. In his January 1989 pre-separation medical examination report, no chest or heart abnormalities were noted. A December 1990 service cardiac catherization report reflects that the Veteran underwent cardiac evaluation due to having experienced chest discomfort. The service medical examiner’s assessment was normal coronary arteries, normal left ventricular contractility, normal cardiovascular hemodynamics, with no evidence of focal spasm of the coronary arteries following ergonovine, and non-cardiac chest discomfort. In a February 2004 letter, the Veteran’s private provider indicated that the Veteran was diagnosed with cardiomyopathy and that he had normal coronary arteries; however, no etiology opinion was provided. The May 2011 VA medical opinion and March 2016 VA addendum opinion, although negative etiology opinions, were found to be inadequate and the Board remanded on several occasions to obtain an adequate VA medical opinion. Because they were not factually informed and not responsive to this matter, these VA medical opinions are of no probative value. A November 2019 VA examiner diagnosed the Veteran with non-obstructive coronary artery disease and non-ischemic cardiomyopathy. The examiner opined that the Veteran’s heart disorder did not manifest during service and was not caused by service. The examiner noted that the January 1989 service chest radiograph was not correct due to the December 1990 service cardiac catheterization testing, which was a more sensitive study of the heart, that revealed a normal sized left ventricle. The examiner indicated that the Veteran did not have a cardiac diagnosis, to include cardiomyopathy during service. The November 2019 VA addendum opinion is highly probative because the examiner had an accurate and complete understanding of the Veteran’s medical history and provided a medical conclusion supported by sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). A preponderance of the evidence is against a finding that the Veteran’s heart disorder manifested during or was caused by service. Although a January 1989 service chest radiograph revealed cardiomegaly and left ventricular enlargement, the November 2019 VA examiner indicated that such a finding was not correct based on the December 1990 service cardiac catherization report that revealed normal findings. In the January 1989 pre-separation medical examination report, no chest or heart abnormalities were noted. The November 2019 VA examiner opined that the Veteran’s heart disorder did not manifest during service and was not caused by service. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. Hypertension Hypertension is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms” after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, hypertension will be considered to have been incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). Service connection shall be granted on a secondary basis under 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). INACDUTRA The record reflects an initial diagnosis of hypertension in 1998 during a period of INACDUTRA. While service on active duty alone is sufficient to meet the statutory definition of veteran, service on INACDUTRA without more will not suffice. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a such a period, it must first be established that a claimant was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. VA has not defined the term “injury” in regulations. However, the VA Office of General Counsel indicated that an injury is "harm resulting from some type of external trauma." See VAOPGCPREC 1-2017; see also VAOPGC 6-86 (referring to injury as resulting from external trauma, i.e., application of external force or violence). Although the Veteran was diagnosed with hypertension during a period of INACDUTRA, the hypertension is not considered an injury because the Veteran did not undergo any type of external trauma that resulted in his hypertension during INACDUTRA. Therefore, “veteran” status has not been established for the period of INACDUTRA concerning hypertension. ACTIVE DUTY The Veteran contends that his hypertension was incurred in or caused by his active duty service. STRs dated April 1983, June 1983, August 1983, October 1983 and October 1984 reflect blood pressure readings of 110/72, 102/74, 118/80, 112/72, 118/80, respectively. In the February 1985 service medical examination report, no vascular abnormalities were noted and the Veteran’s blood pressure reading was 120/86. STRs dated October 1985, September 1986 and July 1988 reflect blood pressure readings of 116/66, 126/84, 134/70, respectively. A January 1989 STR reflects blood pressure readings of 130/90 and 128/70. In the January 1989 pre-separation medical examination, no vascular abnormalities were noted and the Veteran’s blood pressure reading was 100/60. However, the mere presence of elevated blood pressure readings during service is not, in and of itself, a basis for granting hypertension. See Blount v. Shinseki, No. 12-1691, 2013 WL 6858190 (holding that isolated elevated blood pressure readings during service did not establish hypertension). In the April 2011 VA hypertension examination, the VA examiner diagnosed the Veteran with hypertension and noted 1998 as the initial date of diagnosis. The examiner opined that the Veteran’s hypertension was not incurred in or caused by active service because blood pressure readings during service did not meet the applicable guidelines for hypertension. The November 2019 VA examiner opined that the Veteran’s hypertension was not incurred in or caused by active service because the Veteran was not diagnosed with hypertension during service and the STRs and separation examinations revealed normal blood pressure readings. A preponderance of the evidence is against a finding that the Veteran’s hypertension was incurred in or caused by active duty service. The Veteran’s blood pressure readings during service were normal, as noted by two VA examiners, and the Veteran’s hypertension did not manifest to a compensable degree within one year from the date of service separation. Two VA examiners have opined that the Veteran’s hypertension was not caused by his active service. Significantly, no competent medical provider has opined otherwise. Therefore, service connection is not warranted and the claim is denied. In the July 2008 VA application for compensation, the Veteran asserted that his hypertension was caused by his heart disorder. As noted above, the Veteran is not service connected for a heart disorder. A preponderance of the evidence is against the claim. Therefore, service connection is not warranted and the claim is denied. Residuals of a transient ischemic attack An August 2003 STR reflects the Veteran’s diagnosis of posterior circulation TIA. In the November 2010 Board hearing, the Veteran testified having initially undergone a TIA in 2003 while he was in the Tennessee Air National Guard and that he was never activated for federal duty. As noted above, the TIA, during INACDUTRA, was not an injury because there was no type of external trauma that occurred during INACDUTRA that resulted in the TIA. In the April 2011 VA examination, the Veteran reported experiencing residuals of his TIA, such as slurred speech, drooling, left upper extremity numbness and gait abnormalities. A VA scintigraphic test revealed normal findings. The examiner opined that the Veteran’s residuals of his TIA were not caused by any incident of active service because the TIA occurred approximately twelve years post-service. In a March 2016 VA addendum, the examiner opined that the Veteran’s TIA was not caused by his heart disorder because cardiomegaly was not a risk factor for TIAs. In a November 2019 VA addendum, the examiner opined that the Veteran’s TIA was not caused by any incident of active service or by his heart disorder. A preponderance of the evidence is against a finding that the Veteran’s residuals of a TIA were incurred in-service, caused by any incident of active service, or caused by the Veteran’s heart disorder. The Veteran was diagnosed with a TIA during a period of INACDUTRA, approximately twelve years post-service. Two VA examiners have opined that the Veteran’s TIA was not caused by any incident of active service. The Veteran is not service connected for his heart disorder. Therefore, service connection is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.