Citation Nr: 20037547 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 18-35 960 DATE: June 2, 2020 ISSUES 1. Entitlement to service connection for a heart disability, to include as due to jet fuel exposure. 2. Entitlement to service connection for hypertension, to include as due to jet fuel exposure. 3. Entitlement to service connection for a lung disability, aneurysm, to include as due to jet fuel exposure. ORDER Entitlement to service connection for a heart disability, to include as due to jet fuel exposure is denied. Entitlement to service connection for a lung disability, aneurysm, to include as due to jet fuel exposure is denied. REMANDED Entitlement to service connection for hypertension, to include as due to jet fuel exposure is remanded. FINDINGS OF FACT 1. The Veteran’s heart disability, claimed as due to jet fuel exposure, was not manifest in service, and is not otherwise attributable to service. 2. The Veteran’s lung disability, aneurysm, claimed as due to jet fuel exposure, was not manifest in service, and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The Veteran’s heart disability, claimed as due to jet fuel exposure, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The Veteran’s lung disability, aneurysm, claimed as due to jet fuel exposure, was not incurred in or aggravated by service. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from August 1966 to June 1970. This matter is before the Board of Veterans Appeals (Board) on appeal from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, the Veteran’s claim of entitlement to service connection for hypertension was originally denied in a rating decision from May 2015. A subsequent rating decision in April 2018 also denied entitlement to service connection for a lung disability and a heart disability, and the denial of hypertension was confirmed and continued. The Veteran submitted a Notice of Disagreement (NOD) in May 2018 and following a statement of the case (SOC), the Veteran perfect his appeal to the Board. In November 2018, the Board found that new and material evidence had been received to reopen the claim for entitlement to service connection for hypertension. That reopened claim, in addition to the heart and lung disability claims, were each then remanded for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran’s claim, 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; 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 a heart disability, to include as due to jet fuel exposure. The Veteran has claimed that his heart disability is due to his active duty service. Specifically, he has claimed that it is due to “breathing aviation fuel.” He also claimed in his June 2018 VA Form 9 that “since discharge from active duty I have not had exposure to chemicals such as the ones on active duty.” To begin, a VA Primary Care Nursing Note from July 13, 2017 shows, “Patient has Heart Disease.” Additional VA treatment records show impressions of and treatment related to the heart, including cardiology consultations. A VA examination from May 2019 also confirms the diagnosis of atrial fibrillation and left atrial enlargement with trace mitral insufficiency. As the Veteran has a current diagnosis, he has met the first criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). Turning to the second criteria, and as cited above, the Veteran has repeatedly asserted that his collective disabilities are due to his exposure to jet fuel. See VA Form 9. The Veteran is competent to report the that which he experiences, such as his active duty service work around aviation fuel. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board also notes that the Veteran’s DD-214 indicates that he served in the Air Force with a Military Occupational Specialty (MOS) of Aircraft Maintenance Specialist, and that he completed training associated with that position. The Board finds that this likely placed the Veteran around aviation fuel as part of his MOS, and for that reason has confirmed his claimed in-service event, thus meeting the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). Turning to the final criteria, there must be a causal relationship between the present disability and the disease or injury incurred or aggravated during service. As noted above, the Veteran’s claim was previously remanded in November 2018. That Board decision determined that a March 2018 VA examination, which provided a negative etiological opinion between the Veteran’s heart disability and his active duty service, was inadequate. As a result, a new VA examination was scheduled. That VA examination occurred in May 2019. The Veteran was seen in person, and the examiner noted that the Veteran’s claims file was reviewed. The examiner confirmed the diagnosis of the heart disability as first diagnosed in August 2016 and noted the lay statements as provided by the Veteran. The examiner then opined that the Veteran’s heart disability was less likely than not incurred in or caused by the Veterans’ active duty service. The examiner stated that the diagnosis of atrial fibrillation, left atrial enlargement with trace mitral insufficiency was not due to his exposure to jet fuel during service. They further reasoned that “there is a lack of medical evidence to support a causal relation between jet fuel exposure causing the heart conditions … the U.S. Department of Veterans Affairs reports that scientific research on long-term effectives is not conclusive. The examiner then cited to those studies and wrote further that “no nexus can be established.” There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran’s heart disability is not at least as likely as not due to his active duty service. While the Veteran is competent to report that his MOS placed him around aviation fuel, which was also confirmed from his DD-214, there is nothing in the claims file to suggest that the Veteran has medical training or expertise to provide a positive etiological opinion. Furthermore, the May 2019 opinion, which has been provided significant probative weight, determined that the Veteran’s heart disability was not due to his active duty service, to include the Veterans’ exposure to jet fuel. And while the Board previously determined that the March 2018 VA examiner’s opinion was inadequate, the Board is cognizant that it did not provide a positive etiological opinion. There are no other positive etiological opinions within the Veteran’s claims file, and the Board notes that the heart disability was first diagnosed in 2016, approximately forty-six years since the Veteran retired from active duty. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000), (a negative inference may be drawn from the absence of complaints for an extended period). As such, the Board finds that the Veteran’s heart disability is not due to his active duty service, to include his exposure to jet fuel. As a result, he has not met the third criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. Neither the Veteran nor his Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a lung disability, aneurysm, to include as due to jet fuel exposure. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that his lung disability is due to his active duty service. Specifically, he has claimed that it is due to exposure to jet fuel. See June 2018 VA Form 9. Regarding the first criteria, the Veteran was afforded a March 2018 Welch Allyn CardioPerfect Workstation examination from Carolina Prime Internal Medicine. It showed a diagnostic impression of “moderate lung restrictions with poor effect after.” There was an abnormal spirometry report showing “moderate restriction” for pre forced vital capacity (FVC) and “Very severe restriction” for post FVC. The Veteran underwent a VAMC CT scan of his chest in November 2018 that found “unchanged tiny pulmonary nodules,” which were later noted as “stable.” The Veteran was also seen for a VA examination in May 2019. The examiner confirmed that the Veteran has a current diagnosis of a lung disability, more specifically “pulmonary nodules,” from November 2018. In consideration of the above findings, the Board has confirmed that the Veteran has a current diagnosis of a lung disability. 38 C.F.R. § § 3.303(a). As determined in the preceding section, the Board has confirmed that the Veteran is competent to report his in-service exposure to jet fuel, which has further been affirmed by his MOS. As such, he has met the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). Turning to the final criteria, and as noted above, the Board has previously determined that the findings from the March 2018 VA examination were inadequate, as the rationale provided was a single sentence. As a result, the Veteran was given another VA examination in May 2019. The VA examiner saw the Veteran in person and reviewed the Veteran’s claims file. As noted above, the examiner confirmed the Veteran’s diagnosis of a present lung disability. The examiner then opined that the Veteran’s lung disability was less likely than not caused by the Veteran’s active duty service. The examiner noted the Veteran’s lay statements and claims regarding his in-service exposure to jet fuel, however stated that there was “a lack of medical evidence to support a causal relation between jet fuel exposures causing a lung condition.” The examiner again cited to medical research, which found that the research “on long-term effects is not conclusive [and] no nexus can be established.” As stated in the preceding section, there is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran’s lung disability is not related to his active duty service, to include his exposure to jet fuel. Again, while the Veteran has credibly pointed towards a confirmed in-service event – his exposure to aviation fuel while working as an Aircraft Maintenance Specialist – there is no indication that the Veteran has medical training or expertise necessary to provide a positive etiological opinion. The May 2019 examiner however has been afforded significant probative weight and provided a negative opinion. There are no further positive nexus opinions within the Veteran’s claims file, and the Board further recognizes that the Veteran’s lung disability was first officially diagnosed in November 2018, after complaints noted from March 2018, which is forty-eight years following the Veteran’s separation from service. As a result, the Board finds that the Veteran’s lung disability is not related to his active duty service, to include his exposure to aviation fuel as part of his MOS. Thus, the Veteran has not met the third criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). In reaching these conclusions, the Board finds that the preponderance of the evidence is against the claim. Neither the Veteran nor his Representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). As such, the benefit of the doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. Entitlement to service connection for hypertension, to include as due to jet fuel exposure. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that his hypertension is due to his active duty service. Specifically, he has claimed that it is due to exposure to jet fuel. See June 2018 VA Form 9. In addition to service connection on a direct basis, cardiovascular renal disease, to include hypertension, may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran’s discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Turning to the first criteria, a February 28, 2012 VA Primary Care Note shows an active problems list that includes hypertension, with a date of identification of July 17, 2010. A VA treatment record from May 9, 2012 shows “History of: High Blood Pressure/Vascular hypertension.” A VA examiner’s note from April 2009 notes that hypertension was included in the problem list with a “date of onset” in 2005. The Veteran was also seen for a VA examination in May 2019, whereby the examiner confirmed the Veteran’s diagnosis of hypertension. As such, the Veteran has met the first criteria for entitlement to service connection, insofar as he has a current diagnosis. 38 C.F.R. § § 3.303(a). As determined in the preceding section, the Board has confirmed that the Veteran is competent to report his in-service exposure to jet fuel, which has further been affirmed by his MOS and his DD-214. As such, he has met the second criteria for entitlement to service connection. 38 C.F.R. § § 3.303(a). Turning to the final criteria, and as previously discussed, this issue was remanded in a November 2018 Board decision. In that decision, the Board noted that the March 2018 VA examination provided only a brief rationale, did not consider direct service connection, and based their rationale on an inaccurate factual premise – that the date of the Veteran’s hypertension diagnosis was 2013, the date medication for hypertension first began. The Board noted however noted that “it is unlikely the Veteran only began taking mediation on the very day the disease entity first manifest.” Therefore, the Board found the March 2018 VA examination inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As a result, another VA examination was scheduled. That VA examination occurred in May 2019. The VA examiner confirmed the Veteran’s diagnosis, and provided a negative etiological opinion, that the Veteran’s hypertension was less likely than not due to the Veteran’s exposure to jet fuel. Having said that, the VA examiner again stated that the Veteran’s official date of diagnosis was 2013, which is the same inaccurate factual premise that the March 2018 examiner based their negative opinion on. Again, the Board has noted evidence in the Veteran’s claims file that hypertension was identified as early as 2005, and VAMC records show that hypertension was clearly present prior to 2013. Importantly, an opinion based upon an inaccurate factual premise has no probative value. See Reonal v. Brown, 5 Vet. App. 460, 461 (1993). Furthermore, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the May 2019 VA examination is inadequate for the same reasons as the March 2018 VA examination, as the rationale provided was based on an inaccurate date of original diagnosis. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. An addendum opinion must be obtained from an appropriate clinician, and the Veteran’s active duty service must be considered in addition to his exposure to aviation fuel. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran’s VA treatment records, and associate them with the Veteran’s claims folder. 2. Following the completion of Step 1, forward the Veteran’s claims file, including a copy of this remand, to an appropriate clinician for a VA addendum opinion regarding the etiology of the Veteran’s hypertension. The examiner must note that the claims file was reviewed, to include a copy of this remand. (a.) the clinician is requested to answer whether it is at least as likely as not (a 50 percent or greater probability) that the diagnosed hypertension was incurred in or is otherwise related to the Veteran’s active military service. The VA examiner should consider the evidence in the claims file, as well as the Veteran’s lay contentions regarding jet fuel exposure causing his present disability. The examiner’s consideration is not limited to the Veteran’s exposure to jet fuel and should also consider the Veteran’s active duty service more broadly. The examiner should provide a complete rationale for all opinions expressed. (Continued on next page.) 3. After completing the above, and any other necessary development, the claim remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his Representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.