Citation Nr: 21062245 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-47 493 DATE: October 6, 2021 ORDER Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. Entitlement to service connection for myocardial infarction, as due to hypertension, is denied. REMANDED Entitlement to service connection for diabetes mellitus type II, as due to hypertension, is remanded. FINDINGS OF FACT 1. There is no competent (that is, qualified) evidence that the Veteran has been diagnosed with COPD. 2. A preponderance of the evidence is against a finding that the Veteran's myocardial infarction was caused or aggravated by service or by his service-connected hypertension. CONCLUSIONS OF LAW 1. The criteria have not been met for service connection for COPD. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria have not been met for service connection for myocardial infarction. 38 U.S.C. §§ 1101, 5107; 38 C.F.R. § §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1982, with additional reserve service. This case comes to the Board of Veteran's Appeals (Board) on appeal of February 2014 and March 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran attended a Board hearing held by a Veterans Law Judge (VLJ). The transcript of that hearing is of record. However, the VLJ who conducted that hearing is no longer available to participate in this decision. The Veteran was put on notice of this fact in a July 2021 letter, and was provided an opportunity to request another Board hearing. That letter also informed the Veteran that if he did not respond within 30 days, the Board would proceed with his appeal. The Veteran did not respond to the letter within this time frame. The Board has considered the transcript of that hearing as evidence in making its decision. This case was previously before the Board in January 2020 when it was remanded for additional development. Concerning the issue of service connection for diabetes mellitus, unfortunately, for the reasons discussed below, another remand is required. See Stegall v. West, 11. Vet. App. 268 (1998). Concerning the other issues on appeal, the Board finds that there has been substantial compliance with its prior remand directives. During the period of the appeal, in an October 2020 rating decision, the RO granted service connection for hypertension. In a December 2020 rating decision, the RO granted service connection for a stroke and chronic kidney disease. Therefore, those claims for service connection have been resolved and are no longer before the Board on appeal. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1101, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, are presumed to be serviced connected if they manifest to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. §§ 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Service connection for COPD is denied. Factual Background In a November 2020 VA respiratory examination report, the examiner noted that the Veteran did not have any diagnosed respiratory condition, to include COPD. The Veteran reported that he started having difficulty breathing in 1981, during service, and had problems ever since. November 2020 x-ray results for the Veteran's chest were normal. The VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran did not have a diagnosis of COPD or any other respiratory condition. Legal Analysis The Board has not overlooked the Veteran's statements concerning his claimed respiratory symptoms. While the Veteran is competent to observe his symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his symptoms or whether they were related to his active service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the November 2020 VA examination report, finding that the Veteran did not have a diagnosis of COPD or any other respiratory condition to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The most fundamental requirement for any claim for service connection, on either a direct or secondary basis, is that the Veteran must first establish he or she has the condition claimed. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In other words, the evidence must show that, at some point during the appeal period, the Veteran has the disability for which benefits are being claimed. In this case, the evidence discussed above establishes that the Veteran have never been diagnosed with COPD or any other respiratory condition. COPD and other respiratory disorders are medically complex and not subject to lay observation. In the absence of a current disability, the claim for COPD must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because of this, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for myocardial infarction, to include as due to hypertension, is denied. Factual Background The Veteran contends that his myocardial infarction was due to his service-connected hypertension. The Board notes that the Veteran was granted service connection for hypertension in an October 2020 rating decision. The Veteran does not contend, and the evidence does not show, that the Veteran's myocardial infarction was directly caused during or as a result of service. In a November 2020 VA heart examination report, the Veteran was diagnosed with acute, subacute or old myocardial infarction, coronary artery disease (CAD, hypertensive heart disease, coronary artery bypass graft (CABG), and percutaneous coronary intervention (PCI). The VA examiner opined that the Veteran's myocardial infarction was at least as likely as not proximately due to or the result of his service-connected hypertension. The rationale was that the Veteran's hypertension began during service and continued for years. The Veteran's hypertension was poorly controlled according to the medical record. The Veteran had CAD and then had a myocardial infarction with cardiac arrest. However, in a February 2021 VA addendum opinion, the examiner opined that it was less likely than not that the Veteran's heart condition was proximately due to or the result of his hypertension. The rationale was that hypertension was a risk factor for CAD but did not cause it in the absence of coronary occlusion/atherosclerosis. The examiner explained that hypertension affects the heart more by its effect on the pump or cardiac muscle. This is due to increased peripheral vascular resistance forcing the heart to work harder. According to the VA examiner, there was no evidence that the Veteran had hypertensive heart disease at the time of the initial claimed myocardial infarction in 1998, with four total PCIs through 2003, and an ultimate CABG in 2017. The examiner reported that the Veteran had minimal clinical evidence of hypertensive cardiovascular disease. He had a mild concentric left ventricular hypertrophy with a normal ejection fraction on echo in October 2020. The Veteran had a normal, complete nuclear stress test and perfusion scan in September 2020, which showed normal left ventricular end-diastolic pressure, which suggested normal relaxation of the left ventricle. According to the VA examiner, this suggested very little impact of hypertension on the cardiac muscle of the Veteran's CAD and residuals. Additionally, the normal nuclear stress test and perfusion scan and echo suggest no progression or aggravation of the Veteran's cardiac conditions beyond the natural course, including the Veteran's hypertension. The normal wall motion, normal perfusion, and normal resting ventricular pressure all suggested little or no impact of hypertension on the Veteran's cardiac conditions, either as to cause or aggravation. Because of this, it was less likely than not that the Veteran's CAD, myocardial infarction, PCIs and CABG were due to or incurred by the service-connected hypertension. It was less likely than not that the cardiac conditions had been aggravated beyond the natural course due to any cause, including hypertension. Analysis The Board has not overlooked the Veteran's statements concerning his heart symptoms. While the Veteran is competent to observe his symptoms, he does not have the training or credentials to provide a competent opinion as to the cause of his various heart conditions, and if they were caused or aggravated by his service-connected hypertension. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the February 2021 VA opinion, finding no connection between the Veteran's heart conditions and his hypertension to be the most probative evidence of record, as the examiner reviewed the claims file and provided a detailed rationale. While the Board notes that the November 2020 opinion was positive as to a connection between the Veteran's myocardial infarction with his service-connected hypertension, the February 2021 opinion went into much greater detail in explaining why the Veteran's heart conditions were not caused or aggravated by his hypertension. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Because of this, the objective medical findings and opinions provided by the February 2021 VA examiner have been accorded greater probative weight than the November 2020 nexus opinion in determining that service connection is not warranted. Therefore, the preponderance of the evidence is against the claim. The benefit-of-the-doubt rule does not apply, and this service connection claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for diabetes mellitus type II, as due to hypertension, is remanded. In a November 2020 VA examination report, the Veteran was diagnosed with diabetes mellitus type II. The examiner opined that it was less likely than not that the Veteran's diabetes was proximately due to or the result of his service-connected hypertension. The rationale was that "DM is not caused by hypertension. The DM is likely caused by a combination of genetic susceptibility and environmental factors." The Board notes that the November 2020 opinion did not address whether the Veteran's diabetes had been aggravated by his hypertension. Because of this, the November 2020 opinion is inadequate and a new opinion is necessary to determine whether the Veteran's diabetes mellitus type II was caused or aggravated by his service-connected hypertension. The matters are REMANDED for the following actions: 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1), contact the Veteran for additional information about treatment for his condition and make efforts to obtain all VA and private treatment records concerning this claim. 2. Arrange for the Veteran's file to be forwarded to a VA examiner for clarifying addendum opinion regarding the likely cause of the Veteran's diabetes mellitus type II, to include as due to his service-connected hypertension. The examiner or consulting physician must review the entire record (including all updated records obtained pursuant to the above development order). Based on his or her review, the examiner or consulting physician should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's diabetes was proximately due to or aggravated by his service-connected hypertension. 3. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.