Citation Nr: 21067978 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 16-45 314 DATE: November 8, 2021 ORDER Entitlement to service connection for cardiomegaly is granted. REMANDED Entitlement to service connection for hypertension, to include as secondary to cardiomegaly, is remanded. Entitlement to service connection for a left thumb contusion is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his cardiomegaly is related active-duty service. CONCLUSION OF LAW The criteria for service connection for cardiomegaly are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1970 to February 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In May 2015 the Veteran filed a timely notice of disagreement (NOD) and in August 2016, the RO issued a statement of the case (SOC). In September 2016, the Veteran perfected his substantive appeal and in a September 2019 decision, the Board denied the claims. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Joint Motion for Partial Remand (JMPR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the September 2019 decision as to the issue on appeal. The Court granted the JMPR in a September 2020 order. In a January 2021 decision, the Board remanded this issue for additional development and the matters are again before the Board for adjudication. 1. Entitlement to service connection for cardiomegaly is granted. The Veteran is seeking entitlement to service connection for cardiomegaly. Specifically, he contends that he was diagnosed with cardiomegaly during service. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A Veteran is competent to describe symptoms that she experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After a review of the entire evidentiary record and in light of the applicable legal criteria, affording the Veteran the benefit of the doubt, the Board finds that service connection is warranted for cardiomegaly. Regarding the first and second elements of service connection, VA treatment records show that the Veteran has an enlarged heart. See February 2021 VA Treatment Record. A January 1972 service treatment record (STR) also shows a diagnosis of cardiomegaly. Accordingly, the Board finds that the first and second elements of service connection have been met. The salient question is thus whether the Veteran's disability is related to service. Turning to the evidence of record, in an August 1995 private treatment record, the Veteran's treating physician asserted that the Veteran had cardiomegaly and no hypertension, although hypertension can lead to cardiomegaly. In an April 2015 VA opinion an examiner opined that the Veteran's disability was less likely than not related to service. He explained that he was unable to identify a heart condition. Here, the April 2015 VA opinion is inadequate for adjudicative purposes and of little, if any, probative value. The examiner fails to adequately address the treatment records and service records indicating that the Veteran has cardiomegaly. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran was diagnosed with cardiomegaly during service, is currently diagnosed with an enlarged heart/cardiomegaly, has experienced cardiomegaly since service. Thus, the Board finds that the third element of service connection has been met and service connection for cardiomegaly is warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, including as secondary to cardiomegaly, is remanded. The Veteran is seeking service connection for hypertension. Specifically, the Veteran contends that his disability is secondary to his cardiomegaly. Following a review of the record, the Board finds that additional development is warranted prior to adjudication. Here, in April 2015, the Veteran was afforded a VA examination. There is no indication that the VA examination provided a nexus opinion. As such a remand is warranted for a VA opinion. See Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). 2. Entitlement to service connection for a left thumb contusion is remanded. The Veteran is seeking service connection for a left thumb contusion. Specifically, he asserts that in September 1970 he was thrown out of a truck during wargames and had an injury to his left thumb. He had to wear a brace for three months. It still gives problems, to include arthritis and pain. Review of the record shows that the Veteran has not been afforded a VA examination in order to determine the etiology of any left thumb contusion. Because the Veteran contends that he was injured during service and has experienced pain since service a remand for a VA medical examination and opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a right knee disability is remanded. The Veteran is seeking service connection for a right knee disability. Specifically, he contends that he has experienced knee pain since service. See August 2021 VA Examination. As noted above, in a January 2021 decision, the Board remanded this issue. Unfortunately, the requested development has not been substantially completed and a remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). Pursuant to the remand directives, the AOJ provided the Veteran with a VA examination in August 2021. The examiner opined that the Veteran's disability was less likely than not related to service, to include in-service treatment for a pulled muscle with an ace wrap on the right knee in September 1970. He explained that the Veteran had an acute, self-limiting injury that would not cause chronic right knee pain. There were no additional records in-service that would cause chronic right knee pain 51 years later. Here, the VA examiner fails to address the Veteran's competent lay assertions regarding experiencing knee pain since service and that he experienced knee pain due to his physical training during service. See August 2021 VA Examination. As such, a remand is warranted for a new opinion that adequately addresses the evidence of record, to include the Veteran's lay assertions. See Rodriguez-Nieves v. Peake, 22 Vet. App. 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his disabilities. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Obtain an addendum opinion to determine nature and etiology of the Veteran's hypertension. The claims file must be made available to the examiner and pertinent documents should be reviewed to include this remand. The need for a VA examination is left to the discretion of the clinician selected to write the opinion. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is related to service. (b.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is caused by his cardiomegaly/enlarged heart. (c.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypertension is aggravated by his cardiomegaly/enlarged heart. A detailed rationale is requested for all opinions. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. For the purposes of secondary service connection, the examiner is advised that aggravation is defined as "any increase in disability." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 3. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of his left thumb disability. After a review of the record, and interview and examination of the Veteran, the following opinions must be provided: (a.) Whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran has a left thumb disability that onset in, or is otherwise related to, active service. In doing so, the examiner should consider the service treatment records, the nature of the Veteran's MOS duties, and the Veteran's lay description of his inservice thumb injury and symptoms since service. A detailed rationale is requested for all opinions. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Obtain an addendum opinion to determine nature and etiology of the Veteran's right knee disability. The claims file must be made available to the examiner and pertinent documents should be reviewed to include this remand. The need for a VA examination is left to the discretion of the clinician selected to write the opinion. The VA examiner should address the following: (a.) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's right knee disability is related to service. In doing so, the examiner should consider the service treatment records, the nature of the Veteran's MOS duties, to include his physical training, and the Veteran's lay description of his right knee injury, and symptoms since service. A detailed rationale is requested for all opinions. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, Associate 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.