Citation Nr: 21068978 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 16-06 643 DATE: November 17, 2021 ORDER Entitlement to service connection for pulmonary hypertension with acute respiratory failure is denied. Entitlement to service connection for chronic renal insufficiency is denied. Entitlement to service connection for a scar, status post endarterectomy, is denied. REMANDED The appeal regarding entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. The Veteran's pulmonary hypertension with acute respiratory failure was not manifest in service or within one year following separation from service, and is not otherwise related to service. 2. The Veteran's chronic renal insufficiency was not manifest in service or within one year following separation from service, and is not otherwise related to service. 3. The Veteran's residual endarterectomy scar is not related to service or to service-connected disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for pulmonary hypertension and respiratory failure have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria to establish service connection for chronic renal insufficiency have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 3. The criteria to establish service connection for residual endarterectomy scars have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1986 to July 1999 and from October 2006 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) from an August 2014 rating decision by the Agency of Original Jurisdiction (AOJ). The Board remanded the appeal for development of the record in September 2018, September 2019, and March 2021. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Service incurrence or aggravation of cardiovascular renal disease may be presumed to have been incurred or aggravated if the disability is manifested to a compensable degree within one year of the Veteran's discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. A decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service-connected disease or injury. 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 caused or aggravated by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). As an initial matter, the Board acknowledges that complete service treatment records are not available. The Veteran was advised of this by the AOJ in July 2014, and asked to submit any such records in his possession. In such cases, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Here, the Veteran specifically maintains that his pulmonary hypertension with acute respiratory failure and chronic renal insufficiency are related to findings of elevated cholesterol in 2009. Available service treatment records reflect that laboratory results in December 2009 indicated elevated high density lipoprotein and low density lipoprotein cholesterol. He was cleared for separation and advised to seek care from VA or a private physician. He was also advised to have a repeat lipid panel in six to twelve months. The Veteran argues that his claimed disabilities result from atherosclerosis which was caused by his history of high cholesterol. See February 2016 VA Form 9. Additionally, he seeks service connection for a pulmonary endarterectomy scar as secondary to his pulmonary hypertension. The Veteran presented for VA treatment in April 2012, reporting a four month history of dyspnea with exertion. He indicated that prior to January 2012, he had been in his usual state of health and was able to exercise and walk without limitations. Following extensive workup, the impression was severe pulmonary hypertension secondary to chronic pulmonary embolisms, multiple pulmonary embolisms and right deep venous thrombosis, and stage III chronic kidney disease, possibly secondary to right sided heart failure. The Veteran underwent right and left pulmonary endarterectomy in June 2013, at the University of California San Diego Medical Center, for management of his pulmonary vascular disease. The surgical report indicates preoperative diagnoses of severe chronic thromboembolic pulmonary vascular disease and severe pulmonary hypertension. The surgery involved median sternotomy. In September 2021, a physician reviewed the record and recited pertinent evidence. He noted that just prior to separation from active duty, the Veteran was found to have elevated cholesterol. He indicated that in early 2012, the Veteran reported that he experienced dyspnea and lower extremity edema, and that he was found to have mild impairment of renal function which was initially of unclear etiology. The physician noted that the Veteran was later found to have deep venous thrombosis and pulmonary embolism. He indicated that the pulmonary embolism was of sufficient size to cause pulmonary hypertension. He also stated that such had caused the Veteran's chronic renal insufficiency. He concluded that the events clearly started in 2012, as the particular set of symptoms (dyspnea on exertion and edema) led to a series of medical evaluations that eventually discovered the thrombosis/pulmonary embolism. He stated that elevated cholesterol did not have a pathophysiological relationship with the pulmonary embolism that resulted in both the pulmonary hypertension and chronic renal insufficiency. He explained that the confusion often came with the use of the term "clot" which was a layman's term and was often used to describe to patients both thrombosis and atherosclerosis. He pointed out that thrombosis and atherosclerosis were very different entities. He noted that elevated cholesterol was a risk factor specifically for atherosclerosis, which was the result of years of deposition of plaques and fatty material typically on the inside of the arteries. He indicated that the Veteran had thrombosis of the venous system, which was not caused by elevated cholesterol. He also noted that elevated cholesterol was not a risk factor for thrombosis. He indicated that deep venous thrombosis and pulmonary embolism were generally considered acute events causing symptoms with their onset, and that it was very unlikely that the Veteran's deep venous thrombosis and pulmonary embolism remained dormant and undetected three years earlier during service. Having carefully reviewed the record, the Board concludes that service connection is not warranted. While the record demonstrates that the Veteran has pulmonary hypertension with associated acute respiratory failure and chronic kidney insufficiency, the record demonstrates onset in 2012. Moreover, the most competent and probative evidence does not etiologically link these disabilities to service or any incident therein. Rather, the September 2021 VA examiner opined that these claimed disabilities are not related to findings of elevated cholesterol in 2009. The examiner explained that the pulmonary embolism discovered in 2012 was the cause of pulmonary hypertension and chronic kidney insufficiency, and that elevated cholesterol was not a risk factor or cause of thrombosis of the venous system. The reviewing physician provided an opinion based on a complete review of the Veteran's history, and supported it by an in-depth discussion of the medical principles underlying his conclusions. In assigning high probative value to this physician's opinion, the Board notes that he had the claims file for review and specifically discussed the Veteran's contentions and medical history. There is no indication that this physician was not fully aware of the Veteran's history or that he misstated any relevant fact. The Board thus finds his opinion to be of greater probative value than the Veteran's unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding the Veteran's post-surgical endarterectomy scar, the Board concludes that service connection is not warranted. The Veteran does not contend that this disability is related to service; rather, he seeks service connection as secondary to lung surgery. As noted, the 2013 pulmonary endarterectomy was for the management of the Veteran's pulmonary vascular disease. The physician who reviewed the record in September 2021 opined that the Veteran's pulmonary disease was not related to service. Thus, there is no basis upon which to award service connection for the surgical scar as secondary to the Veteran's pulmonary hypertension. The grant of service connection requires competent evidence to establish a diagnosis and, as in this case, relate the diagnosis to the Veteran's service or to service-connected disability. While the record contains diagnoses of pulmonary hypertension and chronic renal insufficiency, and reflects that the Veteran underwent pulmonary endarterectomy that required median sternotomy, the preponderance of the evidence is against finding that these disabilities related to any injury or disease during active service or to service-connected disability. Accordingly, the doctrine of reasonable doubt is not applicable in the instant case and the appeal is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND In his original claim, the Veteran specified that he sought service connection for depression as secondary to his claimed pulmonary vascular disease and its residuals. See July 2013 VA Form 21-526. However, he subsequently argued that his psychiatric symptoms are related to the stress caused by recruiting duty during his second period of service. See August 2014 VA Form 21-4138. In August 2016, a VA examiner diagnosed unspecified adjustment disorder. She did not offer an opinion regarding the etiology of this diagnosis. In July 2019, a VA examiner diagnosed unspecified depression with anxious distress. She concluded that the diagnosis was unrelated to service, reasoning that it was more likely related to his current medical conditions, and that the Veteran was not treated for depression in service. In September 2019, the Board noted that the July 2019 examination report did not contain a thorough rationale and directed that an addendum opinion be obtained regarding the etiology of the Veteran's psychiatric disorder. In November 2019, the same examiner indicated that she had reviewed the record and stated that her opinion remained as presented in July 2019. In March 2021, the Board concluded that the November 2019 addendum opinion was inadequate. It noted that remand was warranted to obtain an adequate opinion and to consider the evidence of record. Unfortunately, the Board's remand orders did not direct that an examination or opinion be obtained. Accordingly, remand is necessary to complete development previously identified by the Board. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of his claimed acquired psychiatric disorder. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The examination must include a notation that this record review took place. After the record review and examination of the Veteran, the examiner should identify all current acquired psychiatric disorders present at any point during the appeal period. With respect to any diagnosed acquired psychiatric disorder, including adjustment disorder and depression, the examiner should provide an opinion regarding whether it is at least as likely as not that such disorder was incurred in, or is otherwise related, to active service. In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. Specifically, the examiner should address the Veteran's contention that his psychiatric disorder is related to his service as a recruiter. If the examiner rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Then, readjudicate the Veteran's claim. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) and afforded an appropriate period within which to respond thereto. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.