Citation Nr: 21000575 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 11-32 937 DATE: January 5, 2021 ORDER Entitlement to service connection for the residuals of a heart attack is denied. Entitlement to service connection for a hernia is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The Veteran’s contended hypertension, heart attack, and hernia did not arise in and are not otherwise etiologically related to any period of active duty for training, inactive duty for training, or active duty service. 2. The Veteran’s contended hypertension, heart attack, and hernia did not manifest to a compensable degree within a year of active duty. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for the residuals of a heart attack have not been met. 38 U.S.C. §§ 101, 315, 502, 503, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a hernia disability have not been met. 38 U.S.C. §§ 101, 315, 502, 503, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 101, 315, 502, 503, 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service for training (ACDUTRA) from August 1976 to November 1976 and additional periods of ACDUTRA and inactive duty for training (INACDUTRA) in the National Reserves and Alabama Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in November 2013, July 2017, and December 2018. The most recent remand directed the agency of original jurisdiction to obtain additional medical opinions and to obtain any potential outstanding records relating to any period of ACDUTRA or INACDUTRA in the Alabama Air National Guard. The Board is satisfied that there has been substantial compliance with these remand directives. The Veteran also appeared and testified before the undersigned Veterans Law Judge at a hearing conducted in July 2013. A transcript of the hearing has been included in the claims file. Service Connection 1. Service Connection for the residuals of a heart attack and a hernia Legal Standard In order to substantiate a claim of service connection, there must be evidence of: (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury (in the line of duty on active duty); and (3) a nexus between the disease or injury in service in service and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Compensation is payable (service-connection is warranted) for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. § §§ 1110, 1131. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d). When a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty (on Reserve ACDUTRA/INACDUTRA or during federalized National Guard service). Smith v. Shinseki, 24 Vet. App. 40 (2010). Otherwise, the period would not qualify as “active military, naval, or air service” and the claimant would not achieve “veteran status” for purposes of that claim. 38 U.S.C. § 101(2)-(24). A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the state militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service (i.e., Federalized). 38 U.S.C. §§ 315, 502, 503; 38 C.F.R. § 3.6 (c), (d); Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Thus, a member of the National Guard holds a status as a member of the federal military or the state militia, but never both at once. Id.; See also Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990). As such, only the Veteran’s active duty service, federalized National Guard service, or ACDUTRA/INACDUTRA period qualify for the purpose of VA compensation benefits. 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis As the evidence and contentions relating to the Veteran’s claims for service connection for a hernia and a heart attack are largely similar, the Board will address them together. After reviewing the credible, competent, and probative evidence of record, the Board does not find that the criteria for service connection for those disabilities have been met. The Veteran first sought service connection for these disabilities in his April 2009 claim form. He stated at that time that his mild heart attack and hernia in the stomach area were treated from August 1976 to April 2009. However, that is the only instance in which the Veteran suggested that he had a heart attack or hernia dating back to his initial period of ACDUTRA. In contrast, at a consultative examination conducted in the course of his claim for disability benefits with the Social Security Administration (SSA), the Veteran reported that his heart attack had occurred 10 years earlier and that he underwent a right inguinal hernia repair in 2001. Another date for the Veteran’s contended heart attack was recorded in a private treatment note in April 2010, in which the Veteran stated that his myocardial infarction had occurred in 2005 but that he had not had any treatment. In support of his claim, the Veteran also submitted lay statements from friends and family members in December 2011. They stated that prior to joining the Army, the Veteran had been physically fit, but after returning in 1976 his health began to decline. His sister-in-law reported that he had always complaining about headaches and his condition got worse until his heart attack. None of these individuals gave specific information regarding the context, date, or circumstances of the Veteran’s development of his hernia or when he experienced his heart attack. As explained above, the Veteran testified before the Board at a July 2013 hearing. At that time, he appeared to attribute his disabilities to overexertion during his time in the National Guard when he stated that he carried everything on his back. He also explained that he had been having trouble with high blood pressure right after his service in 1976 and that ultimately, he had problems and eventually a heart attack in February 2001 during a weekend training drill. The Veteran noted that no line of duty report was given, and he did not inform anyone because he did not know he was having a heart attack at the time. In the course of the instant appeal, the Veteran also attended medical examinations arranged for him by VA. In September 2017, the Veteran reported that in the 1980s he was treated for symptoms of a sudden onset of dyspnea and chest pain. He also reported a diagnosis of hypertension in the 1980s after elevated in-service pressure as well as a sudden onset of right groin and lower abdominal bulge while in service with heavy lifting. The Board notes that these statements appear to contradict themselves to some degree, with initial reports from the Veteran that treatment for his hernia and heart attack began in the 1970s, other reports to the VA medical examiner that his heart attack occurred in the 1980s. Additionally, subsequent reports to other medical examiners include different heart attack dates in the 2000s. These inconsistencies reduce the probative value and credibility of the statements. Moreover, the lay statements submitted in support of his claim from friends and family members also lack the specificity to be of any substantial probative value in determining when and whether the Veteran’s contended heart attack is attributable to service. The Board notes that the contemporaneous medical evidence regarding the Veteran’s contended heart attack and hernia also weighs against a finding that the he incurred his heart attack in any period of service or due to any such period. While the claims file includes relatively few pieces of evidence from the Veteran’s periods of ACDUTRA and INACDUTRA, there are isolated medical examination reports. No reports of a heart attack or any abdominal abnormalities or hernias were noted at the time of the Veteran’s April 1976 enlistment examination. At the examination that occurred at the release from his ACDUTRA period in October 1976, the examining clinician again reported no cardiovascular or abdominal-related abnormalities. At that time, the Veteran stated that he was in good health. These service records do not include any evidence that the Veteran had experienced elevated blood pressure. On the contrary, at an enlistment examination with the Army National Guard in March 1980, the Veteran completed a report of medical history form in which he affirmatively denied high or low blood pressure, heart trouble, or a hernia. A physical examination of the Veteran at that time also failed to uncover any abnormalities relating to those contended disabilities. The claims file also includes subsequent physical examination reports and medical history statements relating to the Veteran’s professional qualifications as a driver. For instance, in January 1997, the Veteran underwent such an exam and he denied both heart trouble as well as stomach trouble or hernias. No report of cardiovascular diseases was noted. However, at a January 2001 physical examination relating to driving qualification, while the Veteran did not report a history of any diseases, to include cardiovascular disease, an examination of his abdomen did show a left hernia. The following month, he attended an examination with the same physician at which he reported that he was found to have an inguinal hernia at a recent National Guard physical exam that disqualified him from entry to service. In the course of treatment for this condition, the Veteran was referred to a cardiology consultation at which he reported chest pain, edema, palpitations, and hypertension by history. An abnormal EKG report around that time triggered the Veteran’s admission to the intensive care unit, with subsequent EKG tests showing continued but improving abnormalities. At the cardiology consultation, the Veteran’s chest pain was thought to be musculoskeletal, and his ECG was reported to show probable old left ventricular hypertrophy. A stress ECG exam did not show abnormalities at that time. Subsequent ECG/EKG reports did show abnormalities in May 2001 that could not rule out an anterior infarct of an undetermined age, but the Veteran ultimately underwent a repair of his left inguinal hernia on May 3, 2001, despite these cardiological abnormalities. To evaluate the Veteran’s claim for service connection, the Board remanded the matter to obtain a medical examination and, subsequently, a medical opinion. As explained above, the Veteran attended such an examination in September 2017. The examiner ultimately stated that the Veteran had coronary artery disease and an acute, subacute, or old myocardial infarction in the 1980s as well as a hernia in the 1980s. Ultimately, the examiner determined that there was not sufficient evidence to determine that the claimed heart attack or hernia were related to any period of ACDUTRA or INACDUTRA. Due to the lack of any substantial rationale, VA obtained the February 2020 addendum medical opinion. The examiner who completed this opinion noted that the Veteran’s period from service from August to November 1976 included no evidence of signs or symptoms consistent with an inguinal hernia or a heart attack and that in fact the Veteran’s separation examination was negative for these disabilities. Given this evidence and the substantial gap between service and the early 2001 reports of a potential myocardial infarction and hernia, the examiner stated that it was less likely than not that either condition arose in or was related to service. The Board finds that, in contrast to the Veteran and the friends and family members who submitted lay statements, there is evidence that each of these examiners who commented on the Veteran’s history of hernia and contended heart attack possesses medical training that renders them competent to opine on the medically complex question of whether and when the Veteran demonstrated a hernia or heart attack. The Board also finds that the February 2020 opinion is substantially probative regarding the question of whether the Veteran had a heart attack or hernia during any period of service. In a November 2018 brief, the Veteran’s representative challenged the 2017 examiner’s credentials, arguing that she was a nurse practitioner who did not specialize in cardiology or internal medicine. The record reflects that the February 2020 examiner was also not a medical doctor, but rather a physician’s assistant. However, the United States Court of Appeals for Veterans Claims (Court) has held that nurse practitioners are competent to provide diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007); see also Mathis v. McDonald, 643 Fed. Appx. 968 (Fed. Cir. 2016). As there is no specific showing of why either of these examiners is not competent by virtue of their education, training, or experience, the Board does not find that the fact that neither of the examiners had either an M.D. or D.O. degree renders them not competent to provide their opinions. Ultimately, the record simply does not contain any competent and credible evidence indicating the Veteran experienced a heart attack or hernia during his initial period of ACDUTRA in 1976. The somewhat vague lay statements from friends and family members that the Veteran’s health declined after his time in the Army are not competent evidence linking a heart or hernia disability to that period, and the February 2020 examiner explicitly provided a credible and competent opinion that no such sign or symptom of a hernia or heart attack is noted in service. The Board will then turn to the more substantial contention that the Veteran experienced his heart attack and hernia in 2001 during a weekend drill period of ACDUTRA or INACDUTRA. The Court has made clear that VA benefits can only be granted when there has been service department verification that a VA claimant served in the United States Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). The Court further explained that VA is “prohibited from finding, on any basis other than a service department document, which VA believes to be authentic and accurate, or service department verification, that a particular individual served in the U.S. Armed Forces.” Id. While the holding of the Court in Duro only mentioned verification of active duty service, it subsequently clarified that the requirement of verification of service by official service department records also applies to ACDUTRA and INACDTURA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). In other words, VA can only find that an individual was serving on active duty for training or inactive duty for training when such service is documented in official service department records. Id. The period in question, then, appears to be either January or February 2001 through early May 2001, when the Veteran demonstrated hernia symptoms, abnormal ECG/EKGs, and ultimately underwent his hernia repair. As explained above, the Veteran reported to a treating physician that he was found not fit for entry to service because of his claimed hernia that was discovered at a recent National Guard examination. However, there is no service department record verifying that the Veteran was on a period of ACDUTRA or INACDUTRA at that time. On the contrary, pay records received in September 2017 do not contain any evidence of drill payment (either inactive or active duty for training) in the period from January 2001 through the date of the Veteran’s hernia surgery in May of that year. An Army National Guard retirement points history statement also explicitly noted that the Veteran had a non-military, civilian break for the period between June 1982 and May 2001. As the record contained suggestions that that the Veteran also served in the Air Force National Guard, to include in a May 2013 representative brief, the Board remanded the matter to determine whether that department possessed any evidence of service during this period of early 2001. VA was informed in November 2019 that no records were found for the Veteran from the Alabama Air National Guard. As there is simply no competent service department evidence that the Veteran was serving on ACDUTRA or INACDUTRA in the period from January 2001 to early May 2001 when the Veteran’s hernia and questionable heart attack appear to have manifested, and there is otherwise no competent evidence linking the Veteran’s contended heart attack and hernia to any confirmed period of ACDUTRA, INACDUTRA, or active duty service, the Board finds that the preponderance of the credible, competent, and probative evidence is against the Veteran’s claim. The appeal is denied. 2. Service connection for hypertension In contrast to the Veteran’s contentions regarding his hernia and heart attack, the Veteran directly attributes his hypertension to elevated blood pressure readings during his initial period of ACDUTRA in 1976. At the Board hearing, he stated that although he could not remember the exact date of his diagnosis, that his former physician who had since died prescribed him blood pressure medication less than a year after that period and that he has been on blood pressure medication since that point. As explained above, several lay statements from November 2011 were received, to include from the Veteran’s wife, in which it was noted that the Veteran suffered high blood pressure when he entered the Army. The Board notes, however, that these lay statements made many decades after the Veteran’s 1976 period of ACDUTRA appear to directly conflict with the contemporaneous medical examination reports and reports of medical history in the Veteran’s service records. As confirmed by the February 2020 VA examiner, the service records from 1976 do not include any evidence of elevated blood pressure reading or any diagnosis or treatment for hypertension. Moreover, in reports of medical history from March 1980 and March 1981 in connection with the Veteran’s National Guard service, he explicitly denied having high or low blood pressure. As was the case with a hernia and a heart attack, the record also included subsequent vocational medical records referenced above relating to driving qualifications in which the Veteran again denied having cardiovascular disease. The Board finds that these earlier medical records are more probative with respect to the question of when the Veteran’s hypertension first manifested and significantly diminish the credibility of the Veteran and other lay statements regarding the history of this disability. Given this lack of evidence and the significant gap in time between service and the first diagnosis of hypertension, the February 2020 VA medical examiner also provided a negative nexus opinion regarding whether the Veteran’s hypertension was due to any period of service. The Board finds that this opinion is largely consistent with the medical evidence of record and has no reason to doubt the credibility of the examiner’s statement. As the Board does not find that the lay statements regarding the history of diagnosis and treatment of hypertension to be credible, the Board also finds that there is no inadequacy in this opinion due to a failure to consider the lay reports of medical history. The record is otherwise silent regarding any contentions that the Veteran’s hypertension arose during any other period of ACDUTRA. Indeed, this hypertension appears to have been diagnosed sometime in the same period prior to the late May 2001 period of service in the National Guard during which the Veteran had experienced his hernia and had questionably old myocardial infarcts demonstrated on several EKG/ECGs. There is no service department record verifying that the Veteran was on ACDUTRA or INACDUTRA during the Veteran’s diagnosis of hypertension. The record also contains simply no competent, credible, and probative medical evidence demonstrating that the Veteran’s hypertension arose in a period of ACDUTRA or is related to any injury or accident during a period of INACDUTRA. Likewise, the record is devoid of any evidence that hypertension arose in, is etiologically due to, or became manifest to a compensable degree within one year of active service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Given these determinations, the Board finds that the preponderance of the credible, competent, and probative evidence is against a finding that the criteria for service connection for hypertension have been met. The appeal is therefore denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Whitelaw, 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.