Citation Nr: 21072211 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-40 069 DATE: December 2, 2021 ORDER Service connection for a heart disorder, claimed as chest pains, is denied. Service connection for hypertension is denied. REMANDED Entitlement to service connection for bilateral hip osteoarthritis is remanded. FINDINGS OF FACT 1. A heart disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service and did not manifest to a compensable degree within one year of separation from active duty. 2. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, did not manifest to a compensable degree within one year of separation from active duty, and is not caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had periods of active duty from October 1989 to June 1990, December 1990 to May 1991, and from August 1, 2007 to August 3, 2007, with additional service in the Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2014 by a Department of Veterans Affairs (VA) Regional Office. The Board remanded the claims in September 2018, June 2020, and March 2021 for additional development and they now return for further appellate review. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as arteriosclerosis and cardiovascular-renal disease, to include hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also 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). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). 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). 1. Entitlement to service connection for a heart disorder, claimed as chest pains. The Veteran contends that his heart disorder, claimed as chest pains, is related to service. In this regard, in an August 2020 written statement, the Veteran reported that he had severe chest pains and was unable to go to work on one occasion, during his first enlistment, from 1989 to 1995. He further reported that he had ongoing chest pain since his separation from service. The Board observes that the record reflects a current diagnosis of occlusion and stenosis of the carotid artery. However, the Veteran's service treatment records (STRs) are negative for any complaints, treatment, or diagnoses referable to a heart disorder. Rather, in May 1991, the Veteran had a normal echocardiogram (EKG), and a chest X-ray showed no significant abnormalities. The Veteran underwent a VA examination in August 2019 in connection with his claim. At such time, the examiner noted a diagnosis of precordial chest pain since September 2010. Here, he indicated precordial chest pain was a type of chest pain that was felt on the left side of the chest and was used interchangeably with atypical chest pain, which represented any complaints where an individual did not have the classic indications of angina. The examiner further indicated that these symptoms may be caused by cardiac difficulties, as well as problems which are non-cardiac (muscle, nerve, pleura). Ultimately, he opined that the Veteran's heart disorder was less likely than not caused by the claimed in-service injury, event, or illness. As rationale for the opinion, the examiner reported that the Veteran was released from active duty and transferred to the reserves in 1991. He was diagnosed with chest pain in September 2010 and there were no reports of chest pain noted in the STRs during his active service years. He further reported that the Veteran had multiple ECGs and a stress test/echo cardiogram, which revealed normal findings. However, in June 2020, the Board found that as the August 2019 VA examiner did not provide a medical opinion for the diagnosed heart disorder of occlusion and stenosis of the carotid artery, an addendum opinion was necessary to decide the claim. Thereafter, an addendum opinion was obtained in October 2020. At such time, the examiner found that the Veteran's examination was consistent with carotid artery stenosis; however, there was no compelling evidence of any condition in service that may have resulted in his current carotid artery stenosis. However, in March 2021, the Board found that, as the October 2020 VA examiner relied on the lack of documented treatment for Veteran's heart disorder in his STRs, and he did not sufficiently consider the Veteran's lay statements that he experienced chest pains during active service, an addendum opinion was necessary to decide the claim. Accordingly, an addendum opinion was rendered in May 2021. In this regard, the examiner noted the Veteran's reports that he experienced intermittent chest pains; however, found that his STRs did not show any evidence of chest pain or other condition that may have resulted in the chest pain. Additionally, the examiner reported that the August 2019 VA examination noted a diagnosis of precordial chest pain that started in 2010 and there was no indication such was incurred in service; a July 2014 treatment record indicated the Veteran experienced chest pain one month prior to such visit; and echocardiograms from September 2010 and January 2015 were normal, with no evidence of a cardiac condition. Thus, the examiner concluded that although the Veteran reported chest pains, there was no objective evidence of a cardiac condition that may have caused chest pain and the STRs did not show any compelling evidence of chest pain during service; therefore, the Veteran's heart disorder was less likely than not incurred in service. The Board affords great probative weight to the August 2019 (in reference to the Veteran's diagnosed precordial chest pain) and May 2021 (in reference to the Veteran's diagnosed carotid artery stenosis) VA examiners' opinions as such considered all of the pertinent evidence of record, to include the Veteran's contentions, his medical history, and relevant medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Notably, there is no medical opinion to the contrary. The Board acknowledges that the Veteran believes that his current heart disorder is related to his military service; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Accordingly, the Veteran's opinion as to the etiology of his heart disorder is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that the Veteran's heart disorder manifested to a compensable year within one year of the Veteran's separation from active duty. In this regard, his STRs are silent for any complaints, treatment, or diagnoses referable to a heart disorder, and the first objective evidence of such was documented in September 2010. None of clinical records reflect a history of onset in a period of active duty or shortly after a period of active duty. Moreover, while the Veteran reported chest pains since service, such symptomatology has not been continuous. Consequently, presumptive service connection for a heart disorder, to include on the basis of a continuity of symptomatology, is not warranted. Based on the foregoing, the Board finds that a heart disorder is not shown to be causally or etiologically related to any disease, injury, or incident during active duty service, and did not manifest to a compensable degree within one year of separation from active duty. Thus, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement for service connection for a heart disorder. As such, that doctrine is not applicable in the instant appeal, and such must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for hypertension, to include as secondary to a heart disorder. The Veteran contends that his hypertension is a result of his military service or in the alternative, is caused or aggravated by his heart disorder. As an initial matter, the Board notes that, by virtue of this decision, the Veteran's heart disorder is not service-connected, and thus, secondary service connection for hypertension is prohibited as a matter of law. As pertinent to the remaining theories of entitlement, the Board observes that the record reflects a current diagnosis of hypertension. However, the Veteran's STRs are negative for any complaints, treatment, or diagnoses referable to hypertension, to include high blood pressure. In this regard, in an October 2005 treatment note, the Veteran's recorded blood pressure was 141/91; however, such was not during a period of active duty. Moreover, in April 2019, a VA examiner reviewed the record and opined that the Veteran's hypertension was less likely than not caused by the claimed in-service injury, event, or illness. In support thereof, the examiner reported that the Veteran was released from active duty in 1991 and was diagnosed with hypertension in September 2010. He further reported that the Veteran's STRs did not include encounters during his service years with elevated blood pressures or a diagnosis of hypertension. Additionally, the examiner noted that the Veteran had a diagnosis of essential hypertension, which did not have a known secondary cause. Here, he further noted that genetic factors, diet, stress, minimal physical activity and being overweight were all thought to play a role in developing essential hypertension. The Board affords great probative weight to the August 2019 VA examiner's opinion as such considered all of the pertinent evidence of record, to include the Veteran's contentions, his medical history, and relevant medical literature, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. Furthermore, there is no medical opinion to the contrary of record. The Board also considered the Veteran's assertions as to the etiology of his hypertension; however, as a lay person, he does not have the requisite training and experience necessary to address such complex medical matters. See Jandreau, supra. In this regard, the etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert, supra. Accordingly, the Veteran's opinion as to the etiology of his hypertension is not competent evidence and, consequently, is afforded no probative weight. Furthermore, the evidence of record fails to demonstrate that the Veteran's hypertension manifested to a compensable year within one year of the Veteran's separation from active duty. In this regard, his STRs are silent for any complaints, treatment, or diagnoses referable to hypertension, and the first objective evidence of such was documented in September 2010. None of clinical records reflect a history of onset in a period of active duty or shortly after a period of active duty. . Consequently, presumptive service connection for hypertension, to include on the basis of a continuity of symptomatology, is not warranted. Based on the foregoing, the Board finds that hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during active duty service, and did not manifest to a compensable degree within one year of separation from active duty. Thus, service connection for such disorder is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement for service connection for hypertension. As such, that doctrine is not applicable in the instant appeal, and such must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 3. Entitlement to service connection for bilateral hip osteoarthritis. The Veteran contends that his currently diagnosed bilateral hip osteoarthritis is related to service. Pursuant to the March 2021 Board remand, an addendum opinion was rendered in May 2021, in which the VA examiner provided an opinion unfavorable to the Veteran's service connection claim. In particular, the examiner determined that the Veteran's bilateral hip osteoarthritis was less likely than not incurred in service. As rationale for the opinion, the examiner reported that there was no supporting evidence to prove that hip osteoarthritis was incurred in service; there was no evidence of a hip injury, chronic hip pain, or hip arthritis during active duty service; and a review of the Veteran's STRs did not show compelling evidence of hip osteoarthritis during service. Here, the examiner found that it was very likely that the Veteran's bilateral hip osteoarthritis was age related as commonly seen. Upon review, the Board finds the May 2021 VA examiner's opinion insufficient for the purpose of determining entitlement to service connection. Specifically, it appears that the examiner offered a negative nexus opinion based primarily on the lack of documented in-service treatment/diagnosis for hip complaints. However, when a veteran has provided lay testimony of an in-service event, an examiner cannot rely on the absence of corroborating in-service medical records as the basis for a negative nexus opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). In this regard, the Veteran has reported that his in-service physical fitness requirements caused his hip pain; he was told not to report his medical conditions while in the military; and that he has had hip pain since active duty service. Thus, the Board finds a remand is necessary in order to obtain an addendum opinion that addresses such concerns. The matters are REMANDED for the following action: Return the record to the May 2021 VA examiner. The record and a copy of this Remand must be made available to the examiner. If the May 2021 VA examiner is not available, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion for the clinician selected to write the addendum opinion. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's currently diagnosed bilateral hip osteoarthritis had its onset in, or is otherwise related to, his active duty military service. In offering such opinion, the examiner should consider and discuss the lay statements of record, to include the Veteran's reports that his bilateral hip osteoarthritis is due to his in-service physical fitness requirements, he was told not to seek medical attention for his ailments, and his continuity of symptomatology since active duty service. The examiner is advised that the sole basis for a negative opinion cannot be the fact that the Veteran's service treatment records are negative for complaints, treatment, or diagnoses referable to a bilateral hip disorder. A rationale for any opinion offered should be provided. K. STANTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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. K. STANTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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. K. STANTON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.