Citation Nr: 21074580 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-49 234 DATE: December 15, 2021 ORDER Service connection for a vascular disability to include left leg amputation residuals, for accrued benefits purposes, is denied. Service connection for coronary artery disease (CAD), status post myocardial infarction, for accrued benefits purposes, is denied. Service connection for acute cerebellar hemorrhage residuals, claimed as stroke, for accrued benefits purposes, is denied. Service connection for hypertension, claimed as high blood pressure, for accrued benefits purposes, is denied. Service connection for erectile dysfunction, for accrued benefits purposes, is denied. FINDINGS OF FACT 1. The Veteran's vascular disability to include left leg amputation residuals did not have its onset during service, is not shown to be otherwise related to any in-service injury or disease, including exposure to herbicides; and, is not proximately due to, or aggravated by, his service-connected depression. 2. The Veteran's CAD did not have its onset during service, did not manifest to a compensable degree within the first post-service year; is not shown to be otherwise related to any in-service injury or disease, including exposure to herbicides; and, is not proximately due to, or aggravated by, his service-connected depression. 3. The Veteran's acute cerebellar hemorrhage did not have its onset during service, did not manifest to a compensable degree within the first post-service year; is not shown to be otherwise related to any in-service injury or disease, including exposure to herbicides; and, is not proximately due to, or aggravated by, his service-connected depression. 4. The Veteran's hypertension did not have its onset during service, did not manifest to a compensable degree within the first post-service year; is not shown to be otherwise related to any in-service injury or disease; and, is not proximately due to, or aggravated by, his service-connected depression. 5. The Veteran's erectile dysfunction did not have its onset during service, is not shown to be otherwise related to any in-service injury or disease; and, it is not proximately due to, or aggravated by, his service-connected depression. CONCLUSIONS OF LAW 1. The criteria for service connection for a vascular disability to include left leg amputation residuals have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for CAD have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for acute cerebellar hemorrhage residuals have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 4. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to August 1974 and August 1974 to March 1975. He died in November 2020; the appellant is the Veteran's surviving spouse; and, has also been substituted to complete the claims that were pending at the time of the Veteran's death. See March 2021 VA Notification Letter. This case is before the Board of Veterans' Appeals (Board) on appeal from March 2016 and May 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decisions. In the March 2016 rating decision, the RO denied, inter alia, service connection for left leg amputation, acute cerebellar hemorrhage (claimed as stroke), and coronary artery disease, status post myocardial infarction (claimed as heart attack); each claimed as secondary to herbicide exposure. In the May 2017 rating decision, the RO denied, inter alia, high blood pressure, and erectile dysfunction. The Veteran's notices of disagreement were received in March 2017 and May 2017, respectively. The RO issued a statement of the case in September 2017. The Veteran's VA Form 9, substantive appeal to the Board, was received in September 2017. In April 2019, the Board remanded the case to the RO for further development and adjudicative action. In July 2021, the RO conducted a Nehmer review in conjunction with the appellant's claim of service connection for the cause of the Veteran's death. The RO concluded that the Veteran did not meet the criteria to warrant the presumption of Agent Orange exposure, and that exposure to Agent Orange could not otherwise be conceded. See July 2021 RO rating decision. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In pertinent part, 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. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Service connection may also be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, provided that the disease manifests to a compensable degree any time after service, in a Veteran who had active military, naval, or air service in the Republic of Vietnam and its surrounding off-shore waters during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, 38 U.S.C. § 1116B was also added regarding the presumption of herbicide exposure for veterans who served near the Korean DMZ. Under 38 U.S.C. § 1116B the presumption of herbicide exposure extends to a veteran who, during active military, naval, or air service, served in or near the Korean DMZ during the period beginning on September 1, 1967 and ending on August 31, 1971. 38 U.S.C. § 1116B. Nonetheless, a Veteran may establish service connection for a disability not on the list of diseases that are presumed to be due herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 1. Entitlement to service connection for a vascular disability to include left leg amputation. 2. Entitlement to service connection for CAD. 3. Entitlement to service connection for acute cerebral hemorrhage. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for erectile dysfunction. The Veteran asserts his stroke, heart attack (CAD), and left leg amputation were due to his exposure to Agent Orange while stationed at Camp Casey in Korea during active service. See August 2010 Statement in Support. Alternatively, the Veteran asserts that his vascular disease with leg amputation, coronary artery disease, hypertension, erectile dysfunction, and cerebral hemorrhage, are all secondary to his service-connected depression. The Veteran has a current diagnosis for peripheral vascular disease (PVD) with subsequent left leg amputation, acute myocardial infarction, CAD, acute cerebellar hemorrhage (brain hemorrhage), hypertension and erectile dysfunction. See November 2019 VA examinations. Direct and Presumptive Basis Acute myocardial infarction and CAD are among the statutorily enumerated diseases set forth in VA regulations for which presumptive service connection is available for veterans exposed to herbicide agents during active service. 38 C.F.R. § 3.309(e). According to the Veteran's DD-214 and military personnel records he was stationed in Korea during 1974 and 1975. There is no record of the Veteran being stationed in Vietnam or its surrounding off-shore waters during service, and the Veteran was stationed in Korea after the presumptive period from September 1, 1967 to August 31, 1971. See July 2021 VA Memorandum; 38 U.S.C. § 1116B. Therefore, the presumption of herbicide exposure under 38 C.F.R. § 3.307(a)(7); 3.309(e) does not apply; the Veteran's acute myocardial infarction and CAD may not be presumptively linked to herbicide exposure. Moreover, the record does not reflect that the Veteran was otherwise exposed to tactical herbicides such as Agent Orange, during service. See, e.g., July 2021 rating decision. The Veteran's service treatment records are silent for any in-service injury, treatment or diagnosis of a disease to include PVD, CAD, acute cerebellar hemorrhage, hypertension and erectile dysfunction. Rather the Veteran's December 1974 separation examination was normal, and the Veteran reported being in "good health." As noted above, the evidence of record does not document any diagnosis of a chronic disease to include CAD, brain hemorrhage, and hypertension during military service or within one year therefrom. Service connection for chronic conditions, to include CAD, brain hemorrhage, and hypertension on a presumptive basis is therefore denied. See 38 C.F.R. § 3.307, 3.309. In addition, there is no evidence linking the Veteran's CAD, or PVD, brain hemorrhage or hypertension to service. The Veteran's private medical records, for example, contain a June 2004 private cardiology history and physical. That document specifically indicates that the Veteran denied prior past cardiac history until January 20, 2004 when he experienced mid-back pain associated with shortness of breath, sweating, and generalized fatigue and numbness in his arms. The report also noted that the Veteran continued to smoke a pack of cigarettes per day, and denied symptoms of transient ischemic attack or stroke. It was noted that the current cardiac risk factors at that time included: current smoker, hypertension diagnosed in 1994, dyslipidemia, and a family history of premature coronary artery disease. A July 2004 cardiology referral form indicates a diagnosis of 3-vessel CAD, persistent angina, history of MI (myocardial infarction), abnormal angiogram, hypertension and elevated cholesterol. In addition, a May 2009 private inpatient report from Hillcrest Medical Center indicates that the Veteran had a history of significant vascular disease, as well as ongoing tobacco use. A May 2009 Hillcrest history and physical report indicates that the Veteran smokes one pack of cigarettes per day, and has done so since he was a teenager. The Veteran has not asserted that any of the above disabilities had their onset in service, and exposure to Agent Orange during service is not shown. Accordingly, as the evidence of record does not demonstrate that the Veteran's PVD with subsequent left leg amputation, CAD, acute cerebellar hemorrhage, hypertension and erectile dysfunction to be otherwise directly related to any in-service injury or disease, service connection for such conditions on a direct basis is not warranted at this time based on the evidence of record. 38 C.F.R. § 3.303. Secondary Basis The Veteran depression was service connected prior to his death. In a September 2018 private medical opinion from Dr. S. the doctor, after reviewing the Veteran's medical records, medical research and on the basis of his own experience found the Veteran's depressive disorder was as likely as not to have aided in the development of and permanently aggravates his hypertension and CAD. Dr. S. further found that it was as likely as not that the Veteran's hypertension aided in the development of and permanently aggravates his CAD, stroke, PVD and left leg amputation. The Veteran underwent several VA examinations in November 2019 to include artery and vein conditions (vascular diseases), heart conditions, central nervous system, hypertension, and male reproductive organ. During the artery and vein conditions examination, the VA examiner diagnosed PVD with subsequent amputation of left leg secondary to failed graft. The examiner concluded the Veteran's PVD with subsequent leg amputation is less likely than not proximately due to or the result of the Veteran's service-connected depression and provided the following rationale: The two conditions are not related. The amputation is not related to depression and there on no records to support this. Therefore, the PVD with subsequent amputation of left leg secondary to failed graft is less likely due to and/or the result of the Veteran's service-connected Depressive Disorder. The VA examiner further concluded the Veteran's PVD with subsequent leg amputation is less likely than not aggravated beyond its natural progression by the Veteran's service-connected depression as the "vascular disease and amputation are stable and not aggravated by depression." During the heart conditions examination, the VA examiner diagnosed myocardial infarction, CAD, hypertrophic cardiomyopathy. The examiner concluded the Veteran's CAD is less likely than not proximately due to or the result of the Veteran's service-connected depression and provided the following rationale: Depression alone is not a direct causative factor in coronary artery disease as per UpToDate. Records show history and summary of heart condition from 2004 and shows atheroscleroses as etiology for CAD. Therefore, it is less likely that the Coronary Artery Disease, [status post] Myocardial Infarction is due to and/or the result of the veteran's service-connected Depressive Disorder. The VA examiner further concluded the Veteran's CAD is less likely than not aggravated beyond its natural progression by the Veteran's service-connected depression and provided the following rationale: Based on history and evidence review, the Coronary Artery Disease, [status post] Myocardial Infarction does not appear to have progressed since its diagnosis. Symptom worsening is subjective only and there is no information showing that the cad has been made worse by depression. Therefore, it is less likely that the Coronary Artery Disease, [status post] Myocardial Infarction was aggravated beyond its natural progression by the Veteran's service-connected Depressive Disorder. During the nervous system examination, the VA examiner diagnosed acute cerebellar hemorrhage noting that in 2009 while the Veteran was in the hospital for a left leg amputation, he had cerebral hemorrhage and stroke. The examiner concluded the Veteran's acute cerebellar hemorrhage is less likely than not proximately due to or the result of the Veteran's service-connected depression and provided the following rationale: Depression is not a cause of cerebral hemorrhage per UpToDate. Therefore, it is less likely that the Acute Cerebellar Hemorrhage is due to and/or the result of the Veteran's service-connected Depressive Disorder. The VA examiner further concluded the Veteran's acute cerebellar hemorrhage is less likely than not aggravated beyond its natural progression by the Veteran's service-connected depression as the Veteran's "[Cerebrovascular Accident] has remained stable since diagnosis." During the hypertension examination, the VA examiner diagnosed hypertension. The examiner concluded the Veteran's PVD with subsequent leg amputation is less likely than not proximately due to or the result of the Veteran's service-connected depression and provided the following rationale: Depression is not a direct cause of [hypertension] per UpToDate. Page 59 of [the claim's file] shows [hypertension] as being essential [hypertension] which is not caused by depression and is not related to other causative factors. Therefore, it is less likely that the Hypertension is due to and/or the result of the veteran's service-connected Depressive Disorder. The VA examiner further concluded the Veteran's hypertension is less likely than not aggravated beyond its natural progression by the Veteran's service-connected depression as "the Veteran's blood pressure has been under control and not aggravated by depression." During the male reproductive organ examination, the VA examiner diagnosed erectile dysfunction. The examiner concluded the Veteran's erectile dysfunction is less likely than not proximately due to or the result of the Veteran's service-connected depression and provided the following rationale: The [erectile dysfunction] is more likely related to PVD than CAD per UpToDate. Therefore, it is less likely that the Erectile Dysfunction is due to and/or the result of the veteran's service-connected Depressive Disorder. The VA examiner further concluded the Veteran's erectile dysfunction is less likely than not aggravated beyond its natural progression by the Veteran's service-connected depression as "the Veteran's [erectile dysfunction] has been unchanged since diagnosis." The VA examiner further found it more likely that the Veteran's erectile dysfunction was at least as likely due to and/or the result of the Veteran's vascular disease (PVD), hypertension, or stroke supported by the following rationale: PVD is a well-established cause of ED as per UpToDate. Medical literature supports PVD as a cause of ED (see UpToDate). Therefore, the Erectile Dysfunction is at least as likely due to and/or the result of the Veteran's vascular disease, Stroke is an established cause of ED as per UpToDate. Therefore, it is at least as likely that the Erectile Dysfunction is proximately due to and/or the result of the Veteran's stroke. HTN is a well-known cause of ED as per UpToDate. Although HTN can affect ED, in this case my opinion is that it is more likely related to PVD. But Hypertension is also a well-known cause of erectile dysfunction. Therefore, it is at least as likely that the Erectile Dysfunction is proximately due to and/or the result of the Veteran's hypertension The erectile dysfunction is more likely to be related to the veteran's PVD in my opinion than depression. There were no records found regarding ED. Therefore, it is less likely that the Erectile Dysfunction is due to and/or the result of the Veteran's service-connected Depressive Disorder. The Veteran submitted several articles regarding hypertension and depression in October 2020. The articles addressed associations between depression and hypertension, depression and CAD, hypertension and CAD, and depression as a risk factor for hypertension. The appellant submitted a July 2020 private medical opinion from Dr. B. Upon review of the Veteran's claims file, medical records, September 2018 medical opinion of Dr. S., and research and literature on the subject, Dr. B opined as follows: As to hypertension and CAD: "It is at least as likely as not [the Veteran's] service-connected depressive disorder has caused his hypertension... It is at least as likely as not [the Veteran's] service-connected depressive disorder and his hypertension have caused his coronary artery disease." To support her opinion, Dr. B., citing to medical research, noted depression as a predictive factor for both hypertension and cardiac diseases as well as an association between depression and patients with CAD. As to PVD and leg amputation: "It is at least as likely as not [the Veteran's] hypertension has caused his peripheral vascular disease." In her rationale, Dr. B. agrees with the November 2019 VA examiner that the Veteran's PVD was not caused by his depression, concluding it due to his hypertension. Dr. B. further stated, It is my opinion it is not possible to determine how much each of the Veteran's risk factors for peripheral vascular disease, including his history of tobacco use and diabetes, as well as his hypertension, and that they have all likely played a role in the cause of his peripheral vascular disease. As to cerebral hemorrhage (stroke): "It is at least as likely as not the blood thinners [the Veteran] was on during his hospitalization for angioplasty for the left femoral arteries May 2009 due to his peripheral vascular disease, as well as his hypertension caused his cerebral hemorrhage stroke." In her rationale, Dr. B. agrees with the November 2019 VA examiner that the Veteran's stroke was not caused by his depression. To support her opinion, Dr. B., citing to medical research, noted hypertension was the most prevalent risk factor for stroke. In the instant case, more probative weight is accorded to the November 2019 VA examiner's opinions outlined above, which establishes that the Veteran's current conditions to include PVD with subsequent left leg amputation, acute cerebellar hemorrhage, CAD, hypertension and erectile dysfunction, are less likely than not otherwise related to any in-service injury or disease, including secondary to, or aggravated by, the Veteran's service-connected depression. In particular, such was completed by trained medical professionals who reviewed the record and current medical literature and performed an in-person examination of the Veteran. Additionally, the nature and etiology of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Finally, the examiner provided a complete rationale for the opinions based on a review of the pertinent evidence and sound medical principles. Notably, the July 2020 medical opinion is persuasive as to the inter-relationship between the hypertension, CAD, PVD, and stroke, as it is consistent with the private cardiology records from 2004 through 2009. However, none of these disabilities are independently related to any in-service injury or disease, and as noted below, the opinion linking the hypertension to the service-connected depression is not supported by the record and is outweighed by the evidence against the claim. Although both the September 2018 and July 2020 medical opinions found the Veteran's hypertension and CAD were secondary to his service-connected depression, both rely on medical literature to support their opinions. However, these studies in such medical literature do not specifically indicate that there is a causal relationship between depression and hypertension and depression and CAD. Rather the research outlines depression as a risk factor which is too general to serve as a nexus in this case without any supportive medical opinion specific to this Veteran. In other words, just because there is a prevalence of hypertension and CAD amongst veterans with depression, does not mean that depression causes (or aggravates) hypertension or CAD. Further, the medical literature that the Veteran and private physicians provided and cite to does not address the Veteran's specific medical history, diagnosis, and etiology, including presence of other risk factors. In this case, for example, the records from 2004 and 2009 indicate that the Veteran began smoking a pack per day in his teens, and continued to smoke even after he was diagnosed with significant CAD. It is a well-established medical principal that a long history of smoking is one of the greatest risk factors for developing hypertension and CAD, yet neither Dr. S nor Dr. B even mention this risk factors in their opinions; nor do the studies provided in support of the claim consider the Veteran's extensive history of smoking, or the fact that the Veteran had a family history of premature CAD. The Veteran had a nearly 40-year history of smoking, but this, and his other risk factors were not mentioned or considered in the opinions supporting the claim. While medical articles or treatises can provide important support when combined with an opinion of a medical professional, such medical article or treatise evidence must nevertheless discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. See Mattern v. West, 12 Vet. App. 222 (1999); Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998). The Court held that, "generally, an attempt to establish a medical nexus to a disease or injury solely by generic information in a medical journal or treatise is too general and inconclusive." See Mattern at 228 (citing Sacks v. West, 11 Vet. App. 314, 317 (1998). Accordingly, the September 2018 and July 2020 opinions carry little probative value. Further, neither private opinion found a nexus between the Veteran's service-connected depression and his acute cerebral hemorrhage, PVD with subsequent left leg amputation, hypertension and erectile dysfunction. As such, the Veteran has not met the requirements to establish service connection for PVD with subsequent left leg amputation, CAD, acute cerebellar hemorrhage, hypertension, or erectile dysfunction under any theory of entitlement and service connection must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, the doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 2.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Ardalan, 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.