Citation Nr: 21004662 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 14-22 966 DATE: January 27, 2021 ORDER Service connection for a heart disorder is denied. Service connection for stroke, to include as secondary to the claimed heart disorder, is denied. Service connection for a back disorder, to include as secondary to a claimed heart disorder or claimed stroke, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a heart disorder began during active service, is otherwise related to an in-service injury or disease, or aggravated by active service. 2. The preponderance of the evidence is against finding that stroke began during active service, or secondary to a service-connected disability. 3. The preponderance of the evidence is against finding that a back disorder is secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for stroke are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310. 3. The criteria for service connection for a back disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served with the National Guard, with active service from June 17, 1980 to August 14, 1980 and June 29, 1981 to August 24, 1981. He also participated in the ROTC during college. For the purpose of service connection the period of active service from June 17, 1980 to August 14, 1980 and from June 29, 1981 to August 24 are the critical period, and when the Board refers to the appellant’s “military service” or “active service” in this document, it is referring to those few months unless otherwise indicated. The appellant had a hearing before the undersigned Veterans Law Judge in January 2018. In June 2018, the Board remanded this claim for Agency of Original Jurisdiction (AOJ) consideration of newly submitted evidence, as the appellant had not waived AOJ consideration. This consideration was achieved in the most recent supplemental statement of the case (SSOC). Service Connection 1. Entitlement to service connection for a heart disorder. During his January 2018 Board hearing, the appellant reported that in 1980 he was diagnosed with a slightly enlarged heart that was no big deal and a slight heart murmur. The appellant subsequently went to basic training, then finished high school. He later did specialist training, which was somewhat harder than basic for him. He then went to college and into the ROTC. He then indicated that he later went to a Dr. P. and was told his heart would not pass physical and referred him to a cardiologist Dr. T. He further indicated that he never smoked cigarettes and that the only difference since his training had been that the training was the only physical activity that he had done. Two weeks before he saw Dr. T., he reported having “a massive coronary infarction” and his physician indicated no more training. Subsequently he was put on light duty training where he would sit and do nothing. He was eventually discharged without receiving a separation examination. The appellant contends that he had a heart condition prior to his National Guard service, which was aggravated by his service and caused him to have a heart attack (myocardial infarction). Furthermore, his aggravated heart disorder caused him to have a stroke and a back disorder. (See June 2009 VA Form 9s and January 2018 Board hearing testimony). Specifically, in one June 2009 VA Form 9, the appellant’s attorney claimed that “[d]uring training (active duty) the veteran began having more serious heart problems related to training …doctor directed that training be stopped and he was referred to a cardiologist. En route to the cardiologist the veteran suffered a massive heart attack.” In the May 2014 VA Form 9, the appellant’s representative claimed that as the appellant suffered from a heart attack and stroke while a member of the National Guard and thus service connection is warranted. In a January 2018 statement, the appellant’s attorney reported that “[a]lthough for most disabling conditions to matters whether Guard training was for active or inactive duty, but this is not the case with heart attack and stroke…suffered… trained in 1980, 1981 and 1982 and had his first heart attack in the fall of 1981…in March of 1982…heart valve replacement…had 2 heart attacks and a stroke since his training started and was eventually stopped. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The term “active military, naval or air service” is further defined as (1) active duty or a period of active duty training (ACTDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (2) any period of inactive duty training (INACTDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. See 38 U.S.C. § 101(24). Service connection for disability arising from INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in the line of duty, (with the exceptions for acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident). See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). Generally, ACDUTRA includes duty performed by a member of a Senior ROTC program only when ordered to such duty for the purpose of training or a practice cruise under chapter 103 of title 10 for a period of not less than four weeks and which must be completed by the member before the member is commissioned. 38 U.S.C. § 101(22)(D). ROTC training, required before commissioning as an officer, does not constitute active duty and was not covered as ACDUTRA for disability purposes prior to October 1, 1982. 38 C.F.R. § 3.6(c)(4). In this case, the appellant’s ROTC training prior to that date is not ACDUTRA. Service personnel records also indicate of National Guard service from April 14, 1982 to April 13, 1983, and indicated there was no active duty, ACDUTRA, or full-time training duty during that period. Regardless, there is no indication of record of ROTC program training or a practice cruise under chapter 103 of title 10 for a period of not less at least four weeks, other than the ACDUTRA periods previously noted (from June 1980 to August 1980 and June 1981 to August 1981). Other ROTC training can also be considered as INACDUTRA, if verified by INACDUTRA pay records. According to 38 C.F.R. § 3.6 (d)(3), training other than ACDUTRA performed by a member, or an applicant for membership in the Senior ROTC, when ordered to such duty under 10 U.S.C.A. Chapter 103, shall be considered INACDUTRA. But, according to 38 C.F.R. § 3.6(d)(4)(ii) INACDUTRA does not include attendance at an educational institution in an inactive status. Additionally, in this case, no pay record identifies any INACDUTRA payment while the appellant was enrolled in ROTC in an inactive status. The Board thus finds that as opposed to the appellant’s contentions, his only qualifying months of active service are his ACDUTRA from June 17, 1980 to August 14, 1980 and June 29, 1981 to August 14, 1981, per his DD-214s and other service personnel records. During the Board hearing, the appellant indicated that following his March 1982 aortic valve replacement, he was not cleared for physical training and performed no physical training. The May 1982 letter from Dr. G.B. also indicated he should have no further training. Service personnel records subsequently showed he was discharged due to multiple unexcused absences from training, including from May 1983. Even if the Board, for the sake of argument, were to give the appellant the benefit of the doubt as to having active service of some kind from his heart surgery to his April 13, 1983 separation, there is no indication of any physical training during that time upon which the appellant’s claims could be based. As will be explained, the Board finds that the appellant’s claimed heart disorder, which he has alleged began during or was aggravated by service, to include ROTC participation, may not be service connected for benefits purposes. The appellant did not have an acute myocardial infarction (heart attack) or a cardiac arrest either during or after his ACDUTRA or during a period of active service. Although the appellant may have had chest pain in 1981, after his last ACDUTRA day (on August 14, 1981), his reports of a 1981 heart attack, prior to his March 1982 heart valve replacement, are not credible. Contemporaneous Saint Thomas Hospital records include treatment for the heart disorder, including the aortic valve replacement in March 1982, but do not indicate a prior heart attack, despite extensive discussion of his heart history. A March 1982 Saint Thomas Hospital report of operation noted that the appellant had a recent episode of severe chest pain and cardiac catherization revealed moderate aortic insufficiency with left ventricular hypertrophy. A May 1982 letter from his physician, Dr. G.R.B., noted that the appellant had his aortic valve replaced for aortic insufficiency. There is no record as to a stroke until 1984, years after his heart operation. A record of a heart attack is not indicated until an August 1988 discharge summary noted final diagnoses of probable subendocardial myocardial infarction with normal coronary arteries and history of stroke and aortic valve replacement for aortic valve disease. No history of myocardial infarction (heart attack) or cardiac arrest was noted at that time. The Board finds that there is no credible medical evidence of record to indicate that the appellant had a myocardial infarction/heart attack or cardiac arrest during a period of active service or prior to his 1983 separation from the National Guard. As no heart attack or stroke occurred during a period of active service, or indeed until years after his separation from service, the Board will turn to the appellant’s claim that he had a pre-existing heart disorder that was aggravated by active service, which would be his ACDUTRA from June 17, 1980 to August 14, 1980 and June 29, 1981 to August 14, 1981. In deciding a claim based on aggravation, after having determined the presence of a pre-existing condition, the Board must first determine whether there has been any measured worsening of the disability during service and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 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. The record is clear that the appellant had a heart disorder prior to his National Guard enlistment. An April 1980 letter from Dr. R.A.P. reported that the appellant was seen in relation to his National Guard examination. He offered no specific complaint, denied moderate to heavy physical exertion intolerance and episodes of chest pain. The examiner noted that a March 1980 x-ray showed a heart size to be at the upper limits of normal. He found that the appellant was an appropriate candidate for the National Guard, and that follow-up for possible heart murmur should be made to determine existence and progression. Moreover, the Board notes that the presumption of aggravation under 38 U.S.C. § 1153 does not apply to claims based on a period of ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010) (where the Court held that regulations Smith concerning presumptive service connection, the presumption of soundness and the presumption of aggravation, were inapplicable to claims based upon ACDUTRA service). As such, aggravation cannot be presumed. To the extent that the appellant has claimed that he started noticing physical changes during a period of active duty and that his active duty was his only period of physical activity, the Board does not find such reports to be credible given the conflicting contemporaneous evidence. As noted above, the appellant’s understanding of what would qualify as active service is different than what does actually qualify as such service for VA purposes (the ACDUTRA periods noted above). Moreover, the March 1982 Saint Thomas Hospital discharge summary for his aortic valve replacement noted that the appellant saw a physician in October 1981 (after his last day of ACDUTRA on August 24, 1981) and a cardiac catheterization was recommended. It made clear that “[s]ince that time [after his October 1981 visit] he subsequently noticed a decrease in exercise tolerance with a decreasing ability to play basketball. The April 1980 letter from Dr. R.A.P. also noted that the appellant was a member of the high school football and baseball teams further indicating physical activity outside of ACDUTRA. The May 1982 letter from Dr. G.R.B. also indicated that the appellant had been quite active before decreasing exercise tolerance. The Board notes that there is a March 2014 VA examination report and a September 2019 private medical opinion by Dr. S.E.C. Such medical opinions, however, are not adequate as they are based on an inaccurate medical history, in conflict with the private medical records associated with the claims file. Both opinions apparently rely on the appellant having a heart attack during active service or 1981, which as explained above, is not supported by the competent and contemporaneous evidence of record. The Board further notes that the September 2019 opinion of Dr. S.E.C. appears to be based on a 2-year period, not the approximately 4 months of ACDUTRA periods in question. The only other medical opinion of record is the November 2018 VHA opinion of cardiologist K.B. who found that the appellant’s preexisting heart disorder was not aggravated beyond natural progression by National Guard service. She explained that physical training would not have worsened the appellant’s condition, but only made it more apparent. As the preponderance of the most probative evidence is against the claim, the benefit of the doubt rule does not apply. The claim for service connection for a heart disorder is denied. 2. Entitlement to service connection for a stroke, to include as secondary to the claimed heart disorder. In the May 2014 VA Form 9, the appellant’s representative claimed that as the appellant suffered from stroke while a member of the National Guard and thus service connection is warranted. The appellant has also argued that service connection for a stroke is warranted as secondary to the claimed heart disorder. As the appellant does not have service connection for a heart disorder, service connection for a stroke as secondary to the claimed heart disorder is not possible. Furthermore, as previously explained, the only active service periods during which service connection could be based is his ACDUTRA from June 17, 1980 to August 14, 1980 and June 29, 1981 to August 14, 1981. As noted above, St. Thomas Hospital private medical records, such as from January 1984, document that the appellant had a stroke in 1984 and thus not during a period of active service or even when the appellant was a member of the National Guard, as he was discharged in May 1983. There is no evidence or argument of record to support finding that the appellant had a stroke during his ACDUTRA periods or prior to his separation from the National Guard or that it is otherwise related to his active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Service connection for a stroke is denied. 3. Entitlement to service connection for a back disorder, to include as secondary to a heart disorder or stroke. The appellant has claimed that service connection for a back disorder is warranted, to include as secondary to his claimed heart disorder or stroke. In a January 2018 correspondence the appellant’s attorney claimed that the appellant’s back problems were caused by the long-term effects of his strokes. As the appellant is not service connected for either a heart disorder or stroke, service connection secondary to such disorders is not possible. Furthermore, there is no credible evidence or argument of record to indicate that the appellant has a back disorder related to service or developed a back disorder during a period of active service, or during his time with the National Guard. Rather, a December 2003 private medical record from HealthSouth Diagnostic Centers indicated that the appellant hurt his back in November 2003 and had previously had no examinations related to that problem. The evidence of record thus indicates that the appellant developed a back-disorder decades after his separation from service, and that it is not related to a service-connected disorder. As the preponderance of the evidence is against the claim, service connection for a back disorder is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.