Citation Nr: 20043750 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-24 617 DATE: June 29, 2020 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for kidney stones is denied. Entitlement to service connection for hemochromatosis is denied. Entitlement to service connection for malaria is denied. Entitlement to service connection for hepatitis B is denied. FINDINGS OF FACT 1. There is no competent evidence that suggests hypertension, a disease, was incurred or aggravated during a period of active duty or active duty for training (ACDUTRA), and the disability did not manifest to a compensable degree within one year of separation from a continuous period of active service of 90 days or more. 2. There is no competent evidence that suggests kidney stones, a disease, was incurred or aggravated during a period of active duty or ACDTURA, as the preponderance of evidence supports a finding that the condition was first noted during a period of inactive duty for training (INACDUTRA). 3. There is no competent evidence that suggests hemochromatosis, a disease, was incurred or aggravated during a period of active duty or ACDTURA, as the preponderance of evidence supports a finding that the condition was first noted during a period of INACDUTRA. 4. There is no competent evidence that suggests the Veteran has or has ever had malaria or residuals thereof. 5. There is no competent evidence that suggests the Veteran’s previously diagnosed hepatitis B is the result of an in-service disease or injury. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for kidney stones have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 3. The criteria for service connection for hemochromatosis have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 4. The criteria for service connection for malaria have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 5. The criteria for service connection for hepatitis B have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters were previously before the Board of Veterans’ Appeals (Board) in August 2018, when they were remanded for further development. Specifically, the Board directed the Agency of Original Jurisdiction (AOJ) to assist the Veteran in obtaining any outstanding private treatment records that may be relevant to his claims and to consider newly received service records in the first instance. In June 2019, the AOJ asked the Veteran to submit a release to obtain potentially outstanding private treatment records. Although the Veteran returned a signed release form, he did not identify any providers. He subsequently submitted a signed written statement clarifying that he does not wish to submit any additional evidence regarding his claims, requesting that they be adjudicated based on the evidence of record. In May 2020, the AOJ issued a supplemental statement of the case for the issues on appeal that considered all the evidence of record. As a result, there has been substantial compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated by INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. For a member of the National Guard, ACDUTRA means full-time duty for training purposes or field exercises under section 316, 502, 503, 504, or 505 of title 32 of the United States Code. 38 U.S.C. § 101(22). INACDUTRA means duty (other than full-time) duty performed by a member of the National Guard under section 316, 502, 503, 504, or 505 of title 32 of the United States Code. 38 U.S.C. § 101(23). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). The Board must consider all the evidence of record and make appropriate determinations of competence, credibility and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 1. Entitlement to service connection for hypertension is denied. The record establishes the Veteran has hypertension; therefore, the current disability requirement for his service connection claim has been met. Initially, the Board notes the Veteran’s military examination reports reference “nephritis with elevated blood pressure in childhood,” but there is no indication the Veteran had hypertension prior to his military service. The Board further notes the chronic disease presumptions outlined in 38 C.F.R. § 3.307(a)(3) are not for application with respect to the Veteran’s service connection claim for hypertension. See 38 C.F.R. § 3.309(a) (listing hypertension as a chronic disease for the purposes of 38 C.F.R. § 3.307(a)(3)). The Veteran has one documented period of service of 90 days or more, his period of initial entry training from June 1959 to December 1959; there is no indication hypertension or any other disability was incurred in this period or manifest to a compensable degree in the one-year period thereafter. See 38 C.F.R. § 3.307(a)(1) (establishing a 90-day continuous active service requirement for the chronic disease presumption). Thus, service connection for hypertension is not warranted on a presumptive basis under 38 C.F.R. § 3.307 in the Veteran’s case. There is also no competent evidence that suggests the Veteran’s hypertension is the result of a disease or injury during a subsequent period of active duty or ACDUTRA. The Board acknowledges elevated diastolic blood pressure readings were noted during the later stages of the Veteran’s National Guard career, most notably on an October 1992 annual flight examination after which he was required to undergo five-day blood pressure testing, which ultimately revealed normal blood pressure readings, but neither the October 1992 examination nor the other examination reports with elevated diastolic blood pressure readings coincide with a verified period of active duty or ACDUTRA. The onset of hypertension, a disease, during National Guard service cannot give rise to a service connection claim unless the condition first manifest or was aggravated during a verified period of active duty or ACDUTRA. As a result, the Veteran’s service connection claim for hypertension must be denied because there is no competent evidence that suggests the disability was incurred or aggravated during a period of active duty or ACDUTRA, and the disability did not manifest to a compensable degree within one year of separation from a continuous period of active service of 90 days or more. 2. Entitlement to service connection for kidney stones is denied. Similar to his service connection claim for hypertension, the record establishes the Veteran had issues with kidney stones during his National Guard career, but there is no competent evidence that suggests this disability, a disease rather than an injury, was incurred or aggravated during a period of active duty or ACDUTRA. Although the Veteran’s military examinations reference nephritis in childhood, the record does not establish a chronic kidney condition or manifestations of kidney stones prior to the Veteran’s National Guard service. The first documented, or otherwise reported, treatment for kidney stones is a July 6, 1968 emergency room note from the United States Air Force Hospital at Tinker Air Force Base in Oklahoma. A Computation of Service and Training Points in the Veteran’s service personnel records clearly shows he was on INACDUTRA at that time, as he was credited for one military unit training assembly (MUTA) for July 6, 1968. On February 2, 1969, the Veteran again sought treatment for what was believed to be a recurrence of kidney stones, but he was also on INACDUTRA on that date, being credited for two MUTAs. The February 1969 service treatment record (STR) specifically indicates the condition was not incurred in the line of duty, which is also confirmed by a subsequent line of duty determination in the Veteran’s service personnel records. A September 22, 1975 STR shows the Veteran was hospitalized to pass a kidney stone earlier that month, but this notation is not related to the actual hospitalization but rather the Veteran’s request for a medical waiver to remain on flight status. Subsequent reports of medical history prepared in conjunction with the Veteran’s annual flight physicals include references to his previous hospitalizations to pass kidney stones, but these reports do not show the claimed disability was incurred or aggravated during a period of active duty or ACDUTRA service. Service connection cannot be granted for manifestations of kidney stones during INACDUTRA because Congress has limited service connection to injuries incurred or aggravated during INACDUTRA whereas kidney stones constitutes a disease. Thus, the Veteran’s service connection claim for kidney stones must be denied because the record establishes this condition manifest during INACDUTRA and was not incurred or aggravated during a period of active duty or ACDUTRA service. 3. Entitlement to service connection for hemochromatosis is denied. The record also establishes the Veteran was thought to have hemochromatosis during his National Guard career. In late 1981, the Veteran began having abnormal hematology reports, after which he was temporarily disqualified from flight status. On November 16, 1981, the Veteran was noted to have abnormally high iron levels and was suspected of having hemochromatosis, but further testing on November 19, 1981 came back as normal. Yet, a January 9, 1982 service treatment note indicates there was a progression of this condition when comparing lab results from October 22, 1981 with those from December 10, 1981. The statement of the Veteran’s retirement points indicates he was on INACDUTRA on October 22, 1981 when the initial abnormal lab results were noted. The Veteran was then apparently placed on active duty from November 15, 1981 through November 20, 1981 for further evaluation to determine whether he should be removed from flight status, but he was permitted to remain on flight status when the November 19, 1981 testing was deemed normal. He was on INACDUTRA at the time of the subsequent evaluation on January 9, 1982. In sum, the Board finds the preponderance of evidence supports a finding that hemochromatosis, or signs and symptoms thereof, manifest during a period of INACDTURA with the Veteran being placed on a brief period of active duty to assess the condition to determine whether he could continue to perform his military duties; therefore, service connection for hemochromatosis is not warranted because the evidence fails to show the disability was incurred or aggravated during a verified period of active duty or ACDUTRA. 4. Entitlement to service connection for malaria is denied. The Veteran seeks service connection for malaria, claiming he was required to take anti-malaria medication in Panama in 1992. There is no other evidence relating to an in-service disease or injury or a current disability with respect to the Veteran’s service connection claim for malaria. The Board finds the Veteran’s statement that he took anti-malaria medication in Panama in 1992 is insufficient, standing alone, to trigger VA’s duty to provide an examination regarding his claim. VA’s duty to assist requires it to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with military service, and the record does not contain sufficient information to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, there is no evidence the Veteran has a current disability or signs and symptoms of a current disability with respect to his service connection claim for malaria. He has only reported that he was required to take anti-malaria medication, which is commonly used in the military prophylactically, as noted in preventive medicine worksheets in the Veteran’s STRs. While acknowledging the Veteran is competent to report observable symptoms, the Board notes the Veteran has not alleged experiencing any symptoms that could be construed as relating to malaria during service or at any point thereafter. The Board notes evidence to trigger VA’s duty to provide an examination must go beyond conclusory statements by a claimant. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). In this case, there is essentially no evidence that indicates the Veteran has or has ever had malaria. The Board recognizes the absence of evidence does not necessarily equate to substantive negative evidence, unless such evidence would be expected under the circumstances. Yet, the Board finds it reasonable to assume that the Veteran would, at a minimum, be able to report possible symptoms of malaria if he incurred it or a similar disability in service or at any point thereafter. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (“[T]he Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation.”). As there is no such report in the Veteran’s case, the Board finds the preponderance of evidence is against a finding of both an in-service disease or injury and a current disability; therefore, the benefit-of-the-doubt does not apply, and service connection for malaria must be denied. (Continued on the next page)   5. Entitlement to service connection for hepatitis B is denied. The Veteran seeks service connection for hepatitis B, claiming he was exposed to hepatitis B in Korea in 1982. In contrast to his service connection claim for malaria, there is evidence that suggests the Veteran has or has had hepatitis B, most notably an October 2002 admission report from Oklahoma Heart Hospital in Oklahoma City, Oklahoma; however, the Board finds the Veteran’s assertion that he was exposed to hepatitis B in Korea in 1982, standing alone, is insufficient to trigger VA’s duty to provide an examination regarding the Veteran’s claim. See Waters, 601 F.3d at 1278. The Veteran is not competent to diagnosis hepatitis B or even assess circumstances which may constitutes increased risk of exposure for hepatitis B, a condition which is not within the realm of lay observation. While the Veteran is competent to report his medical history, he has not reported a medical professional informed him that he was exposed to hepatitis B or provided any details regarding his alleged exposure, to include the circumstances that led to such exposure or his duty status at that time. Essentially, the only evidence relating hepatitis B to the Veteran’s military service is his own generalized, conclusory statement that such link exists, which is insufficient to trigger VA’s duty to provide an examination under the holding in Waters much less establish the nexus element required for service connection. As such, the Veteran’s service connection claim for hepatitis B must be denied because there is no competent evidence of a nexus to service. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.