Citation Nr: 21065625 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-44 012 DATE: October 26, 2021 ORDER Service connection for a cardiac disability, specifically diastolic dysfunction (DD), is denied. FINDING OF FACT DD was not found in or caused by service, is not secondary to hypertension (HTN) or another service-connected disability, and it has not been worsened due to HTN or another service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disability, specifically diastolic dysfunction, have not been met. 38 U.S.C. §§ 1101, 1110, 1116, 1154, 5107, 7104; 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active-duty service from August 1976 to August 1996, including in Southwest Asia. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board of Veterans' Appeals (Board) denied the service connection claim for a heart disability. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In May 2020, the Court issued memorandum decision that vacated the Board denial and remanded the claim, because the March 2016 VA examination used in adjudicating the Veteran's service connection claim for the presence of cardiac disability was inadequate. On remand from the Court, the Board remanded the issue to the RO and a new, adequate VA examination was conducted in February 2021. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection may be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three-element test: (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 in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under section 3.310(a) of VA regulations, 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. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a non-service-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Entitlement to service connection for a cardiac disability The Veteran contends he is entitled to service connection for cardiac disability due to events in service or on a secondary or aggravation basis due to his service-connected hypertension. While on remand to the RO, the Veteran was afforded a new VA heart disability examination. The VA physician examined the Veteran's C-file and determined that he has five separate heart disability diagnoses of record. Based on the February 2021 heart examination and opinion, the RO service-connected four of the diagnosed conditions under two different grants of service connection. In its March 2021 rating decision, the RO granted service connection for 1. Atrial flutter, status post ablation (resolved); 2. Left anterior fascicular block; 3. Right bundle branch block, Gulf War incurred, with an evaluation of 0 percent effective July 23, 2014. The RO also service connected 4. Aortic ascending aneurysm, secondary to the Veteran's service connected HTN with an evaluation of 0 percent effective the same date, July 23, 2014. In effect, since remand by the Court, the Veteran's claim that he should be service connected for cardiac disability has been granted two new service connection awards. The only remaining, fifth diagnosed, non-service-connected heart condition from the February 2021 VA examination that remains before the Board is Diastolic Dysfunction (DD). The February 2021 VA examiner examined the record and gave all three requested service connection opinions for DD to include direct, secondary, and aggravation service connection opinions. All three were negative and the rationales follow: The Veterans diastolic dysfunction (DD) was found on echo in Aug 2016, 20 years after leaving service. There was no evidence of DD on echoes prior to 2016. The Veterans DD did not occur in service and has no nexus to service. The Veterans diastolic dysfunction found in 2016 on echo is due to age. The Veterans cardiologist who performed the echo stated that the DD was due to age. The most common reason for DD is advanced age. The Veteran was found to have DD in 2016. The Veterans DD is due to age. The Veteran has had no symptoms of DD/CHF since 2016. There is no evidence that the Veterans DD has worsened. Regardless, the Veterans advancing age would be the cause or worsening if it had happened. Generally, lay evidence is competent regarding a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr, 21 Vet. App. at 308-09 (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles, 16 Vet. App. at 374 (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot); Layno, 6 Vet. App. at 470 (a Veteran is competent to report on that of which he or she has personal knowledge). Notwithstanding the above, however, a Veteran is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See 38 C.F.R. § 3.159(a)(2); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). The Veteran is competent to report symptoms of heart problems such as chest pain, shortness of breath, and tiredness, but diagnosis and etiology findings require expert medical knowledge, testing and training, which nothing in the record indicates he has. The Board finds the VA physician who conducted the February 2021 heart examination competent to evaluate and diagnose the Veteran's heart disabilities, and to provide etiology opinions. The opinions and rationales provided are credible and deserve great weight, especially since the examiner provided positive nexus opinions for the other four of the five diagnosed heart disabilities in his medical report. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here the Board finds the preponderance of evidence is against a claim for service connection for diastolic dysfunction; therefore, service connection is denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. 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.