Citation Nr: 21066842 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 14-26 958 DATE: November 2, 2021 ORDER Entitlement to service connection for cardiovascular disease is denied. REMANDED Entitlement to a compensable rating for scars status/post bilateral orchiopexy is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's cardiovascular disease began during active service; is otherwise related to an in-service injury or disease, to include experiencing depression in service; or is secondary to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for cardiovascular disease are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1992 to April 1993, and the United States Marine Corps from August 1996 to October 1997, with additional service in the Army National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision. This matter has a lengthy history, to include prior appeal to the Court of Appeals for Veterans Claims (the Court). Most recently, the matter was before the Board in January 2021, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development in accordance with the Court's March 2020 memorandum decision remanding the issue to the Board. As relates to the issue of entitlement to service connection for cardiovascular disease (alternatively referred to throughout the record as heart disease, a cardiovascular disorder, heart attack and a heart disability), the January 2021 remand directed the RO to obtain an addendum opinion addressing whether "it is at least as likely as not (50 percent or greater probability) that the Veteran's CV disorder is related to, caused, or aggravated by, service, to include in-service depression." The RO obtained a new VA examination and multiple nexus opinions. As further described below, the Board finds that the combined evidence substantially complies with the January 2021 remand directives. Of note, the Board's January 2021 decision included five additional claims for entitlement to service connection, which have all since been granted by the RO in a June 2021 rating decision. As such, the benefits sought on appeal for those issues have been granted in full, and they are no longer on appeal to the Board. The Board acknowledges that the Veteran has another appeal pending at the Board asserting clear and unmistakable error as to three effective date issues. However, as that appeal was initiated under the Appeals Modernization Act (AMA) and the present appeal was initiated under the legacy appeal system, the Board cannot consider these appeals in a single decision. The AMA issues will be addressed in a separate Board decision. Additional reference to the Veteran's disability is presented in the evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the matter at issue that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. Entitlement to service connection for cardiovascular disease The Veteran contends that his current cardiovascular disease is causally related to posttraumatic stress disorder (PTSD) or experiencing depression in service. In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be established on a secondary basis for a disability which is proximately due to or aggravated by the 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 nonservice-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. Id. The Veteran has a current cardiovascular disability. VA medical records list "coronary artery disease" in the Veteran's "Problem List." The May 2021 examiner diagnosed the Veteran with myocardial infarction (MI), coronary artery disease (CAD), unstable angina, acute coronary syndrome (ACS), and being status/post stent placement and percutaneous coronary intervention (PCI). The Veteran's service treatment records contain no evidence of complaints about or treatment for heart disorders. Blood pressure measurements throughout service appear normal. Additionally, in an August 1996 dental health questionnaire (received 12/10/14, page 19 of 86), the Veteran indicates that he has never had and currently does not have heart problems, angina, hypertension, heart murmur, mitral valve prolapse, congestive heart lesions, or heart surgery. Consistent with this, in his September 1997 exit examination (received 12/10/14, page 9 of 113), the Veteran also indicates that he has never had any heart trouble. This evidence weighs against the existence of an in-service incidence of a cardiovascular disability. Further, the Veteran and his representative have never contended that his current disability began in service. Indeed, the Veteran described his heart attack and cardiovascular disease as "genetic" in an October 2013 statement. Rather, the Veteran has vaguely contended that his cardiovascular disease is caused by PTSD. See VA 21-526EZ received June 2015; VA 21-0781a received June 2015. To date, the Veteran has not been granted service connection for PTSD or any acquired psychiatric disorder. As such, the law is dispositive in prohibiting entitlement to service connection for cardiovascular disease secondary to PTSD or an acquired psychiatric disorder. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The essence of the question before the Board at this time is whether the Veteran's cardiovascular disease is at least as likely as not causally related to experiencing depression in service. See Court Decision dated March 2020. The Court noted the Board had conceded that the Veteran had in-service depression. An education counseling note in June 1992 stated that the Veteran was depressed. Nonetheless, even assuming that the Veteran did experience clinical depression in service, the record does not support a finding that his cardiovascular disease is causally related to that experience. On remand, the RO obtained a May 2021 VA examination, and nexus opinions rendered on three separate dates in May and July 2021. The May 2021 examiner diagnosed the Veteran with myocardial infarction (MI), coronary artery disease (CAD), unstable angina, acute coronary syndrome (ACS), and being status/post stent placement and percutaneous coronary intervention (PCI). The examiner then indicated the Veteran's MI, ACS, unstable angina, and PCI/stent placement procedures are etiologically related to his CAD. The Veteran's history of CAD and myocardial infarction was noted to have begun in 2010. The examiner then opined that it was less likely than not that the Veteran's cardiovascular disease was incurred in or caused by service because the Veteran did not have cardiovascular complaints or relate symptoms in service, and the first cardiac issues were in 2010, "which is years after service." A July 2021 addendum opinion concluded that a heart disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness and provided a thorough rationale as to why the Veteran's in-service depression was unrelated to his cardiovascular disease. The clinician explained: Cardiovascular disease in the form of coronary artery disease is caused by buildup of plaque within the coronary arteries. Risk factors of CAD include family history, smoking, obesity, hypertension, and hypercholesterolemia. The Veteran has no service connected conditions that would cause CAD and the Veteran had no medical evaluations for cardiovascular disease while in service. There is no evidence that the Veterans heart conditions are related to or caused by his time in service. There was also a medical opinion dated 5/29/2021 that opined there is no correlation with depression and CAD which I concur with. There is no medical evidence that supports any correlation with depression and the development of the Veterans heart conditions. A May 2021 clinician indicated that the Mayo Clinic website indicates "depression is not a risk factor for causing or worsening depression." The Board finds that, when reading the rationale as a whole, it is clear the clinician intended the second "depression" in that sentence to reference cardiovascular disease. The clinicians noted that, in addition to the temporal separation of the Veteran's reported in-service depression (1992) and the onset of his cardiovascular disease (2010), the Veteran has several of the well-established, known risk factors for causing cardiovascular disease, to include a long history of smoking and elevated lipid levels. When the opinions are read together, the Board finds that they provide an adequate rationale for concluding that the Veteran's cardiovascular disease was less likely than not incurred in, related to, or aggravated by experiencing depression in service. The Veteran has not submitted any probative medical or scientific evidence to support the idea that a remote, isolated instance of depression could cause or worsen cardiovascular disease after nearly 20 years. Since the Veteran has not been granted service connection for an acquired psychiatric disorder, any psychiatric symptoms the Veteran has experienced post-service cannot serve as the basis of for establishing service connection for cardiovascular disease. The Board acknowledges argument submitted by the Veteran's representative in August 2021. That statement acknowledges that "there may not be a direct relationship that depression causes CAD," but asserts that the Veteran's depression or PTSD served as an intermediate step because "the Veteran smoked tobacco in service and to compensate for his symptoms of PTSD." The representative then cited to an article linking PTSD to nicotine dependence, and an article from Mayo Clinic listing smoking tobacco as a primary cause of cardiovascular conditions. The representative's argument does not withstand legal or factual scrutiny. As noted above, the Veteran has not been granted service connection for PTSD and so PTSD cannot serve as an intermediate step for any disability. However, the article does reference another study that found "people with a history of major depression at baseline were three times more likely to progress to smoking daily." See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1513639/, so further analysis is required. In arguing that the Veteran's in-service symptoms caused him to smoke, and thus are an intermediate step to his cardiovascular disease, the representative is relying on VA OGC Prec. Op. 6-2003, which concluded that 38 U.S.C. § 1103(a) does not prohibit granting service connection due to the use of tobacco products if another, service-connected disability caused the Veteran to smoke cigarettes. However, when the precedential opinion is read in its entirety, it clearly states that the statute prohibits granting service connection "secondary to a service-connected disability that caused the veteran to use tobacco products during service" (emphasis in the original). The representative specifically argues that the Veteran smoked "in service and to compensate for his symptoms of PTSD." Again, there is no legal basis for granting service connection for post-service psychiatric symptoms in this case. Thus, to the extent that the argument is that the Veteran's in-service depression caused him to smoke cigarettes while in service, the precedential opinion specifically finds that service connection cannot be granted on that basis under 38 U.S.C. § 1103(a). Finally, even if there was a legal basis for considering post-service or PTSD-related symptoms, a review of the record cannot support the representative's contention that the Veteran's cigarette smoking can be attributed to those symptoms. The Veteran repeatedly reported to medical providers that he began smoking somewhere between ages 11 and 13 years old, and the record shows that he continued to do so until approximately April 2019. See, e.g., STRs dated November 1992, September 1997; CAPRI Record dated February 2012, December 2018, March 2020. Therefore, since the Veteran began smoking on a continuous basis well before he entered service, the Board finds there is no reasonable basis to conclude that any in-service or post-service psychiatric symptoms can be blamed for the Veteran smoking cigarettes. In sum, the Board finds that the preponderance of the evidence is against finding that the Veteran's June 1992 report of depression in service caused or aggravated cardiovascular disease that was diagnosed in 2010. The Veteran's claim for service connection for cardiovascular disease must be denied. REASONS FOR REMAND Entitlement to a compensable rating for scars status/post bilateral orchiopexy Regarding the claim of entitlement to an compensable rating for scars status/post bilateral orchiopexy, the RO granted a 10 percent rating in a June 2021 rating decision, effective May 4, 2021. However, the rating decision phrased the grant as one for service connection, rather than an increased rating. As a result, no supplemental statement of the case was issued as to entitlement to a compensable rating for the period on appeal prior to the May 4, 2021 effective date. A remand is required for the AOJ to issue a supplemental statement of the case. 38 C.F.R. § 19.31; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: 1. Send the Veteran and his representative a supplemental statement of the case that addresses the issue of: entitlement to a compensable rating for service-connected scars status/post bilateral orchiopexy prior to May 4, 2021 and entitlement to a rating in excess of 10 percent for service-connected scars status/post bilateral orchiopexy from May 4, 2021. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Beeler, C. 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.