Citation Nr: 21000875 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 09-12 067 DATE: January 6, 2021 ORDER Entitlement to service connection for a heart disability, to include hypertension, is denied. Entitlement to service connection for a disability of the eyes, to include as secondary to hypertension is denied. Entitlement to service connection for a leg disability, to include as secondary to hypertension is denied. Entitlement to service connection for hepatitis C, to include as secondary to hypertension is denied. Entitlement to service connection for ulcers, to include as secondary to hypertension is denied. FINDINGS OF FACT 1. Hypertension was identified prior to the Veteran’s period of service. 2. Hypertension did not increase in severity during service. 3. A heart disability other than hypertension was not manifest during service or within one year of separation and is not otherwise related to service. 4. An eye disability diagnosed as glaucoma did not manifest in service and is not attributable to service. Glaucoma was not manifest within one year of separation. 5. An eye disability is not caused or aggravated by service-connected disease or injury. 6. A leg disability diagnosed as a fractured right leg and left knee ligament tear and cartilage did not manifest in service and is not attributable to service. 7. A leg disability is not caused or aggravated by service-connected disease or injury. 8. Hepatitis C did not manifest in service and is not attributable to service. 9. Hepatitis C is not caused or aggravated by service-connected disease or injury. 10. An ulcer disability was not manifest during service or within one year of separation and is not otherwise related to service therein. 11. An ulcer disability is not caused or aggravated by service-connected disease or injury. CONCLUSIONS OF LAW 1. Hypertension clearly and unmistakably both pre-existed and was not aggravated by service. The presumption of soundness at entry is rebutted. 38 U.S.C. §§ 1111, 1131, 1153 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2019). 2. A heart disability other than hypertension was not incurred or aggravated during service, nor may coronary artery disease be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 3. An eye disability was not incurred or aggravated during service. Glaucoma (disease of the nervous system) may not be presumed to have been incurred therein. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2019). 4. An eye disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2019). 5. A leg disability was not incurred or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2019). 6. A leg disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2019). 7. Hepatitis C was not incurred or aggravated during service. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2019). 8. Hepatitis C is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2019). 9. An ulcers disability was not incurred or aggravated during service, nor may coronary artery disease be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 10. An ulcers disability is not proximately due to or the result of (causation or aggravation) a service connected disease or injury. 38 C.F.R. § 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1961 to April 1962. The appellant claims as his surviving spouse, and has been substituted as the claimant by the RO for the claims on appeal herein. These matters come before the Board of Veterans’ Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, the appellant and her daughter testified during a hearing at the RO before a Veterans Law Judge (VLJ); a transcript of that hearing is of record. During the May 2014 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included a nexus between the Veteran’s disabilities on appeal and service; clarified the type of evidence that would support the appellant’s claims; and enquired as to the existence of potential outstanding records. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. The party was notified via an August 2020 letter from VA that the VLJ who presided over the May 2014 hearing was no longer employed by the Board. The Veteran was informed that if he desired another hearing, the person was to respond within 30 days of the date of the letter and if there was no response, the Board would proceed with adjudication of his claims. A review of the record reveals that there was no response. Therefore, the Board will proceed with adjudication of the claims on appeal. The Board remanded the claims in November 2014. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence 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”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). For certain chronic disorders, including hypertension and coronary artery disease, and organic disease of the nervous system service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease or injury will be service connected. However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003. The government may show a lack of aggravation by clear and unmistakable evidence that either (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. The burden is on the government when the disorder is not noted at entrance. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In addition, temporary flare-ups, even in service, will not be considered sufficient to establish an increase in severity unless the underlying condition, as contrasted to the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Heart disability to include hypertension The appellant contends that the Veteran had a heart disability to include hypertension that was incurred in or aggravated by service. In particular, she contends that the Veteran’s hypertension preexisted service and was aggravated during service. She further contends that the Veteran had a heart disability other than hypertension that had its onset in service or was alternatively secondary to the hypertension. As will be discussed below, the Board finds that the Veteran’s hypertension preexisted his service whereas his other heart disability diagnosed as coronary artery disease did not. The Board will therefore have separate analyses for the hypertension and heart disability other than hypertension. Hypertension The Board notes that a diagnosis of hypertension was not noted on the Veteran’s July 1960 pre-induction examination or the September 1961 induction examination. Blood pressure readings on the July 1960 pre-induction examination were 130/90, with diastolic pressure of 70 when sitting, 118 immediately after exercise, and 92 two minutes after exercise. Blood pressure was 140/80 on the September 1961 induction examination. As hypertension was therefore neither noted nor apparent from the pre-induction or induction examinations, the Veteran is presumed to have been sound in this regard at entry into service. 38 C.F.R. § 3.304(b) (2019) (veteran presumed sound at entry into service except for defects “noted,” i.e., recorded in examination reports). However, the Board notes that the Veteran’s service records include a medical evaluation board report reflecting that he was found medically unfit for duty due to diagnosis of hypertension. A January 1962 service clinical record reveals that the Veteran reported that he was first aware of an elevated blood pressure prior to entry to active duty. The hospital admission report documented a blood pressure reading of 180/116 in both arms. Moreover, there was a finding of some atrioventricular narrowing with atrioventricular crossing changes. Additionally, prior to entry to active duty, the Veteran was seen at Wills Eye hospital in March 1961 for blurred vision and headaches. Several months later, he had a pre-employment physical examination at the Yellow Cab company wherein a blood pressure reading of 160/108 was recorded. The Board further notes that a VA examiner reviewed the aforementioned medical evidence and in an August 2015 report opined that there was “definite” evidence that the Veteran had high blood pressure readings prior to service as well as headache symptoms. The examiner also noted that arteriolar narrowing in the retina arterioles from hypertension typically requires more than five months to develop given the absence of “malignant” hypertension in the Veteran during active duty. As such, the examiner opined that there was clear and unmistakable evidence that the Veteran’s hypertension preexisted service. The Board finds the VA examiner’s opinion to be of great probative value as his opinion was based on a thorough review of the record and consideration of the Veteran’s medical history. The Board further notes that there is no medical opinion of record which reveals that the Veteran’s hypertension did not clearly and unmistakably preexist service. Accordingly, the Board finds that the Veteran’s hypertension clearly and unmistakably preexisted active service and that the first step of presumption of soundness for this period of active service is rebutted. After a consideration of the evidence of record, the Board finds that the Veteran’s pre-existing hypertension did not undergo an increase in disability during service. Although the Board notes the in-service finding in January 1962 and April 1962 of hypertensive vascular disease as well as blood pressure readings of 180/116, 170/100, and 142/90 in January 1962, the service treatment records are absent worsening of the Veteran’s hypertension. Also, the Veteran’s April 1962 separation examination revealed a blood pressure reading of 138/90 which does not indicate a worsening of the preexisting blood pressure. Additionally, the Board notes the findings of the VA examiner in his August 2015 report that the Veteran’s hypertension was not “malignant” and thereby indicated that the hypertension did not worsen beyond the natural progression of the disability during the Veteran’s active service. The Board finds that the VA examiner’s finding is of great probative value as such was based on thorough consideration of the Veteran’s medical history. The Board further finds that the aforementioned evidence is clear and unmistakable that there was no increase in severity of the pre-existing hypertension during service. To the extent that the appellant contends the Veteran had temporary flare-ups of the hypertension during the period of active service, such temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as opposed to the symptoms of that disability, has worsened. Beverly v. Brown, 9 Vet. App. 402, 405 (1996) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)). The Board acknowledges the statements of the appellant in support of her claim and the general assertions as to the Veteran’s underlying hypertension having worsened as a result of active service. While laypersons are competent to report a contemporaneous medical diagnosis and in certain instances opine as to etiology, the general statements of the appellant that the Veteran had hypertension increase in severity in service (as opposed to intermittent flare-ups of symptomatology) do not outweigh the above evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). The above discussion reflects that the clear and unmistakable evidence establishes that there was no increase in severity of hypertension during the Veteran’s service. Here, the presumption of soundness is rebutted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2019). Heart disability other than hypertension The appellant contends that the Veteran had a heart disability other than hypertension that was related to service. The Board notes that the Veteran’s death certificate documents a finding of coronary artery disease. However, the Board finds that the objective evidence outweighs the appellant’s contention. Crucially, the Veteran’s service treatment records indicate no suggestion of treatment for or complaints of symptoms related to a heart disability other than hypertension. Indeed, the earliest indication of a heart disability other than hypertension is in 1975 when the Veteran underwent open heart surgery. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. This is more than 10 years after the Veteran’s discharge from service. The Board observes that 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 (e.g. any evidence not requiring that the proponent has specialized education, training, or experience). 38 C.F.R. § 3.159(a)(2). As such, the appellant can competently testify about symptoms the Veteran experienced in service. However, competency must be distinguished from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In the present case, the Board finds that the Veteran’s history of a heart disability other than hypertension since service is outweighed by the objective evidence of record considering the lack of any post service identification until 1975 as well as the available service treatment records which indicate normal findings. Therefore, to the extent that the appellant contends that the Veteran’s heart disability other than hypertension manifested during service, this lay evidence is at odds with the remainder of the record, which reflects normal findings during service and the Veteran’s denial of pertinent pathology. As such, the Veteran’s statements are lacking probative value. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a veteran’s testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. In short, there is no credible evidence of an in-service manifestation of a heart disability other than hypertension. To the extent that the appellant asserts that the Veteran’s heart disability other than hypertension is related to service, the Board finds that the appellant’s statements regarding this disability being incurred in service is not credible given the objective evidence of record to include the service treatment records and the postservice medical records.   Conclusion For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the appellant’s claim of entitlement to service connection for a heart disability to include hypertension. The benefit sought on appeal is accordingly denied. Eye, leg, hepatitis C, and ulcers disabilities The appellant contends that the Veteran had eye, leg, hepatitis C, and ulcers disabilities related to service. Specifically, she contends that the Veteran’s eye disability, in particular glaucoma, is related to an in-service finding of conjunctivitis, the leg disability is related to a broken leg in service, the hepatitis C is due to blood transfusions and the in-service finding of hypertension, and the ulcers were due to the in-service finding of hypertension. The Veteran’s service records include a medical evaluation board report reflecting that he was found medically unfit for duty due to diagnoses of hypertension and conjunctivitis. Also, although the appellant indicated that the Veteran had a current right leg disability due to a broken right leg in service which was treated at Fort Sill Hospital, the service records reference treatment only for a left ankle sprain at Fort Sill in December 1961. Finally, regarding the Veteran’s eye disability, although defective vision was noted on his September 1961 induction examination and eye trouble was noted on the report of medical history in that report and a July 1960 report of medical history, another notation was made in a July 1960 pre-induction examination report that the Veteran wore glasses and the vision was “OK” and a normal eye examination was documented in the September 1961 report. As such, the Board finds that the presumption of soundness is not rebutted and there is not clear and unmistakable evidence that an eye disability preexisted active service. VA treatment notes reflect patient medical history and findings of glaucoma, fractured right leg, arthroscopic surgery of the left knee for ligament tear and cartilage, hepatitis C, and ulcers. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s eye disability, leg disability, hepatitis C, and ulcers were related to his service on a direct or presumptive basis. Specifically, a VA opinion was obtained in January 2019 as to the etiology of the Veteran’s eye disability. After review of the Veteran’s medical history, the VA examiner determined that the Veteran’s eye disability diagnosed as glaucoma was not at least as likely as not related to service to include the in-service finding of conjunctivitis. The examiner’s rationale for her conclusion as based on her finding that the in-service finding of conjunctivitis was acute and there was no indication of eye pressure or fundus examination to determine if the Veteran had risk factors for glaucoma. Indeed, the examiner indicated that there was no evidence to support a finding of risk factors for glaucoma in the service treatment records. Regarding the Veteran’s leg disability, a VA opinion was obtained in January 2019. After review of the Veteran’s medical history, the VA examiner concluded that it is less likely than not that the Veteran’s leg disability to include the fractured right leg and arthroscopic surgery of the left knee for ligament tear and cartilage was incurred in or caused by service to include the left ankle sprain. The examiner’s rationale for his conclusion was based on his finding that there were no findings in the service treatment records that would indicate an onset of a leg disability which included the treatment for the left ankle sprain. With respect to the Veteran’s hepatitis C, the VA examiner concluded in an opinion dated January 2019 that the hepatitis C was not incurred in or caused by service. The examiner’s rationale for his conclusion was based on his finding that there was no evidence of a finding of hepatitis C until 2003 and there was no supporting evidence in the medical records that indicated an earlier onset. Regarding the Veteran’s ulcers, a VA examiner concluded in an October 2015 report that it is less likely than not that the Veteran’s ulcers were incurred in or caused by service to include the in-service finding of hypertension. The examiner’s rationale for his conclusion was based on his finding that the Veteran’s service treatment records indicated normal stomach, liver, and intestinal findings as well as negative abdominal examination. Additionally, although the examiner noted the Veteran’s report of a partial gastrectomy at age 19, based on the normal stomach, liver, and intestinal findings in the service treatment records to include the pre-induction and induction examinations, there was no evidence of a preexisting ulcers disability that was aggravated during service. The October 2015 and January 2019 VA opinion reports were based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiners’ opinions are consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with eye, leg, hepatitis C, and ulcers disabilities for many years after active service. The examiners also noted the Veteran’s in-service findings of hypertension and conjunctivitis which they determined to be less likely as not related to the current eye, leg, hepatitis C, and ulcers disabilities. The appellant has not submitted a medical opinion to contradict the VA examiners’ opinions that the Veteran’s eye, leg, hepatitis C, and ulcers disabilities were not related to service. The appellant has been accorded ample opportunity to present competent medical evidence in support of her claims. She has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits].   The Board acknowledges the statements from the appellant and Veteran in support of the claims on appeal. To the extent the appellant and Veteran assert the Veteran’s eye, leg, hepatitis C, and ulcers disabilities were are related to the Veteran’s service, they are competent to report that he had diagnoses of these disabilities (as that is documented in the record). They are also competent to report that the Veteran had symptoms since service. However, the eye disability of glaucoma, leg disabilities of fractured right leg and arthroscopic surgery of the left knee for ligament tear and cartilage, hepatitis C, and ulcers were not noted during service. The Board observes that the appellant and Veteran have reported longstanding symptoms related to the eyes, legs, hepatitis C, and ulcers. The Board notes that they are competent to report these symptoms both current and past. However, this lay evidence is inconsistent with the normal findings upon separation from service and no objective report of any of these disabilities for many years following the Veteran’s separation from service. Further, the objective findings are more credible and more probative than his after-the-fact lay assertions. We conclude that the objective findings are far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the appellant’s and Veteran’s statements with regard to a nexus between his eye, leg, hepatitis C, and ulcers disabilities and service to be of minimal probative value and outweighed by the VA opinions, prepared by skilled neutral professionals. The Board also notes that as discussed above, the appellant and Veteran have indicated that the eye, leg, hepatitis C, and ulcers disabilities were related to the Veteran’s hypertension and that service connection is warranted on a secondary basis. However, as discussed above, service connection is not warranted for hypertension; as such, service connection on a secondary basis is not warranted for eye, leg, hepatitis C, and ulcers disabilities.   For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the appellant’s claims of entitlement to service connection for eye, leg, hepatitis C, and ulcers disabilities. The benefits sought on appeal are accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.