Citation Nr: 21075724 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-42 204 DATE: December 21, 2021 THE ISSUES 1. Entitlement to service connection for sudden death syndrome, to include as secondary to service-connected disability. 2. Entitlement to service connection for congestive heart failure, to include as secondary to service-connected disability. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected disability. 4. Entitlement to service connection for right upper extremity myopathy, to include as secondary to service-connected disability. 5. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability. 6. Entitlement to service connection for tuberculosis or residuals thereof. ORDER Entitlement to service connection for sudden death syndrome, to include as secondary to service-connected disability, is denied. Entitlement to service connection for congestive heart failure, to include as secondary to service-connected disability, is denied. Entitlement to service connection for tuberculosis or residuals thereof is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for right upper extremity myopathy, to include as secondary to service-connected disability, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran's sudden death syndrome was demonstrated years after service, is not etiologically related to any incident of active duty service, and is not caused or aggravated by a service-connected disability 2. The Veteran's congestive heart failure was demonstrated years after service, is not etiologically related to any incident of active duty service, and is not caused or aggravated by a service-connected disability. 3. The Veteran does not currently have active tuberculosis or residuals of tuberculosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sudden death syndrome, to include as due to service-connected disability, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 2. The criteria for entitlement to service connection for congestive heart failure, to include as due to service-connected disability, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310. 3. The criteria for service connection for tuberculosis have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.371, 3.374. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. In July 2019, April 2020, March 2021, and August 2021 the Board remanded the issues; the case now returns for further appellate consideration. Service Connection For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation as provided in this subchapter, but no compensation shall be paid if the disability is a result of the Veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 1110. To establish service connection, there must exist medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013); 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. Service connection may also be granted for listed chronic diseases if they are shown to have manifested to a compensable degree within one year after the Veteran was separated from service or through a showing of "continuity of symptomatology" since service. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.307, 3.309. In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. Throughout the pendency of this appeal, the Veteran asserted that he noticed blood in his urine and sought treatment during his active duty. He asserts that he was hospitalized in 1973 for an unknown period of time. He repeatedly states that he did not know what injury or illness he experienced and believed that his treating medical professionals did not come to a conclusion. Regardless, the Veteran asserts that his currently claimed disabilities resulted from this illness or injury. 1. Entitlement to service connection for sudden death syndrome, to include as secondary to service-connected disability, is denied. 2. Entitlement to service connection for congestive heart failure, to include as secondary to service-connected disability, is denied. The Veteran contends that he suffers from heart disabilities, including sudden death syndrome and congestive heart failure, related to service, to include as secondary to service-connected disabilities. Initially, the Veteran has submitted a letter from his treating VA physician, Dr. S.L. which confirms that the Veteran had a medical history of chronic heart failure including sudden death syndrome. A review of the Veteran's service treatment records demonstrate that he was admitted to the hospital on April 19, 1973 and was discharged on April 27, 1973. Upon admission, the Veteran complained of low abdominal pain, urinary urgency, frequency, nocturia, and an inability to hold the urine for approximately one month. The admission diagnosis was pyelonephritis. After clinical testing during the Veteran's hospitalization, the final diagnoses were cystitis and prostatitis (probably viral). The Veteran's service treatment records are silent for heart complaints or diagnoses. In order to determine the nature and etiology of the Veteran's claimed heart conditions, he was first afforded a VA examination in September 2020. The examiner recorded coronary artery disease (CAD), congestive heart failure, ventricular arrhythmia, cardiomyopathy, implanted cardiac pacemaker, implanted automatic implantable cardioverter defibrillator (AICD), atrial fibrillation, and sudden death syndrome, all diagnosed in 2001. The Veteran reported that he had a heart attack at 15 while wrestling but recovered and was told that he was healthy upon entrance into the military. He claimed he had no heart issues during active-duty service. Instead, the Veteran claimed that in 2001, at age 45, he was rushed to the hospital and told he had congestive heart failure and sudden death syndrome, at which time he was given a pacemaker. The examiner opined that the claimed conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner observed that the Veteran was not diagnosed or treated for sudden death syndrome or congestive heart failure during service. The examiner explained that the Veteran's congestive heart failure and cardiomyopathy were caused by CAD and hypertension, and that his sudden death syndrome was cause by the chronic heart failure, alcoholism, and obesity. The examiner similarly opined that the Veteran's heart disabilities were less likely than not proximately due to or the result of the Veteran's in service tuberculosis treatments or his service-connected prostatitis cystis disabilities. The examiner stated that these conditions are not medically related, after a through review of medical literature failed to demonstrate a causal relationship. Instead, the examiner again stated that his heart disabilities were due his extensive smoking history, obesity, alcoholism, and CAD. The examiner also opined that the Veteran's heart disabilities were less likely than not aggravated by the Veteran's cystitis, prostatitis, and possible tuberculosis. The examiner provided the following rationale: "Since there is no correlation, between in-service prostatitis, cystitis and possible TB with INH treatment, cannot aggravate beyond natural progression CHF and sudden cardiac death." In the March 2021 decision, the Board found that the September 2020 examiner's rationale did not fully explain why the disabilities could not be aggravated by cystitis, prostatitis, and possible tuberculosis. Therefore, the Board remanded the matter in order to obtain an addendum opinion which considered the theory of aggravation by a service-connected disability. The Veteran was afforded such an addendum opinion in May 2021. After a review of the records, the VA examiner opined that the Veteran's heart disabilities were not at least as likely as not aggravated beyond their natural progression by the service-connected cystitis, prostatitis, and possible tuberculosis. In support of this opinion, the examiner explained that there was no credible medical evidence that the Veteran's heart conditions were subject to aggravation by the Veteran's cystitis, prostatitis, or possible tuberculosis. The examiner stated that there was not a pathological mechanism to allow for aggravation and that while the Veteran believed his symptoms to related, the scientific literature did not support such a conclusion, and the Veteran was without the medical expertise to ascribe symptoms to a diagnosis or etiology. In August 2021, the Board again remanded these matters in order that the RO properly consider the evidence of record since the previous Board remand, and issue an adequate supplemental statement of the case (SSC). Upon remand, the Veteran was afforded additional nexus opinions for his heart disabilities. The August 2021 VA addendum opinions similarly come to the conclusion that the Veteran's heart disabilities were less likely than not incurred in or related to service, to include as secondary or aggravated by the Veteran's service-connected disabilities. While the August 2021 VA examiner offered links to medical articles as part of her rationales, the rationales to each opinion are conclusory, and the Board therefore does not find them probative. However, the Board does find probative the September 2020 VA medical opinions addressing direct and secondary theories of entitlement, and the May 2021 VA medical opinions addressing the theory of aggravation by service-connected disabilities. These opinions were made by medical professionals competent offer opinions on the matters of heart disabilities and were supported by persuasive rationale. Indeed, there are no medical opinions to the contrary. The Board has considered the Veteran's statements in support of his claims. The Veteran maintains that his sudden death syndrome and congestive heart failure are related to service or his service-connected disabilities. The Veteran is competent to report the symptoms he experiences, but is not competent to provide a nexus opinion regarding the etiology of his disabilities. The issues in this case are medically complex, and require knowledge of the interaction between multiple systems in the body, to include the cardiovascular system. Therefore, it is outside the competence of the Veteran in this case as the record does not show that he has the skills or medical training to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). The Board must therefore conclude that the preponderance of the evidence is against the claims and they are denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for tuberculosis or residuals thereof. The Veteran contends that he developed tuberculosis in service. A review of the Veteran's service treatment records demonstrate that he was admitted to the hospital on April 19, 1973, and was discharged on April 27, 1973. Upon admission, the Veteran complained of low abdominal pain, urinary urgency, frequency, nocturia, and an inability to hold the urine for approximately one month. The admission diagnosis was pyelonephritis. After clinical testing during the Veteran's hospitalization, the final diagnoses were cystitis and prostatitis (probably viral). Additionally, during the Veteran's hospitalization, several treatment reports indicate that the Veteran was a "PPD converter," which appears to mean that initial tuberculosis testing was negative, but repeat testing changed to positive over time. Consequently, the Veteran was administered prophylactic INH (or isoniazid) therapy. Although chest x-rays were normal throughout his hospitalization, the Veteran was not "believed" to be an active tuberculosis case upon discharge from the hospital; the Board found no definitive determination that the Veteran did not experience tuberculosis. The final diagnosis was PPD converter, on INH therapy. Each of the three final diagnoses rendered at the Veteran's discharge from the hospital was deemed to be "line of duty, not due to own misconduct." In order to determine if the Veteran currently had active tuberculosis or residuals thereof, the Board remanded the matter in April 2020 to afford the Veteran a VA examination. In a September 2020 VA examination, the examiner took note of the Veteran's prior positive PPD test from 1973. The examiner noted that the Veteran subsequently underwent treatment with INH, chest x-rays showed normal findings. She indicated that thereafter the Veteran has remained asymptomatic for any active tuberculosis pulmonary symptoms. The examiner also indicated that the Veteran's disease became inactive in 1973. There were no symptoms or residuals attributable to tuberculosis. In an accompanying opinion the examiner explained that: "during service, [the Veteran's INH therapy for possible TB] was acute only. There is no evidence of chronicity of care and symptoms are subjective only." In the March 2021 decision, the Board remanded this matter in order for the AOJ to readjudicate the claims and issue an SSC. In August 2021, the Veteran was afforded a VA addendum opinion. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed-in service injury, event, or illness. And cited no documented evidence of a diagnosis or treatment for tuberculosis during active duty. While the August 2021 addendum opinion is deficient in that it is based on an inaccurate factual premise (i.e., that the Veteran received no treatment for possible tuberculosis in service), the Board finds that a remand for a new VA addendum opinion is not necessary, as the evidence suggests that the Veteran does not suffer from an active tuberculosis infection or residuals thereof during the period on appeal. Indeed, an April 2014 VA respiratory examination found no tuberculosis, and a January 2017 VA treatment note recorded no history of tuberculosis. Additionally, a recent April 2021 VA treatment note indicated that chest x-rays had been conducted and that there was "no evidence of TB." The Board finds that the Veteran does not have a current disability with regard to his prior positive PPD test. Moreover, no residuals and signs or symptoms have been found related to the prior positive PPD test and he has not had a disorder at any time during the pendency of the claim. See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 321; Romanowsky, 26 Vet. App. at 289. The Board has accorded great probative weight to the September 2020 VA examination report, as well as the VA treatment records. This medical evidence shows that the Veteran does not experience residual symptoms related to his prior in service PPD test. The Board acknowledges the Veteran's claim for residuals; however, there is no medical evidence of record which establishes current symptoms of tuberculosis or of a positive PPD test, including in the VA treatment records noted above. In sum, the Board finds that the Veteran does not have residuals of the prior positive PPD test and has not had a disability during the appeal period. The preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As such, service connection for residuals of a positive PPD test is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to service-connected disability is remanded. The Veteran contends that his hypertension is due to his period of service, to include as secondary to his service-connected disabilities. The Veteran's service treatment records do not contain a diagnosis of hypertension. In order to determine the nature and etiology of the Veteran's claimed hypertension, the Board remanded the matter in April 2020 in order to afford the Veteran a VA examination. Such an examination was conducted in September 2020. The VA examination recorded a diagnosis of hypertension in 2004. During the examination, the Veteran reported that he did not have health insurance, but when he went to the ER, he was told his blood pressure was high. In 2003 he sought treatment at VA and was formally diagnosed with hypertension. The examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner cited a lack of diagnosis of hypertension during service, but included no other rationale. The examiner also opined that the hypertension was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner explained that after a thorough review of medical literature, he was not able to find any evidence for a causal relationship between hypertension and cystis, prostatitis, or tuberculosis with INH therapy. The examiner explained that these were medically unrelated conditions. Further, the examiner also opined that the Veteran's hypertension, diagnosed in 2004, was not less likely than not aggravated beyond its natural progression by his service-connected disabilities. In March 2021 the Board remanded this matter and found that the September 2020 VA examiner's rationale with regards to the theory of aggravation was inadequate. Specifically, the Board stated that the prior remand directives were related to any current disability associated with cystitis, prostatitis, and possible tuberculosis, which the examiner did not address. In May 2021, the Veteran was afforded a VA addendum opinion which addressed the aggravation theory of entitlement. The examiner opined that the Veteran's hypertension was not at least as likely as not aggravated beyond its natural progression by the service-connected cystitis or residuals thereof, prostatitis or residuals thereof, or tuberculosis or residuals thereof. In explanation, the examiner indicated that service treatment records were negative for a diagnosis of hypertension during service, that there was not credible medical evidence that the Veteran's hypertension was aggravated by his service-connected disabilities, and that there was no pathological mechanism to allow for aggravation. The examiner acknowledged the Veteran's contentions, but pointed out that he was not qualified to ascribe symptoms to a diagnosis or etiology. In August 2021, the Board again remanded these matters in order that the RO properly consider the evidence of record since the previous Board remand, and issue an adequate SSC. The Veteran was afforded additional VA medical opinions in August 2021. Again, the examiner opined that the Veteran's hypertension was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner merely stated that the service treatment records were negative for a diagnosis of hypertension during active-duty service. The examiner also opined that the Veteran's hypertension was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner explained that the pathogenesis of hypertension was poorly understood, but that it was most likely the result of numerous genetic and environmental factors that have multiple compounding effects on cardiovascular and kidney structure and function. The examiner went on to write that hypertension was a vascular condition caused by the restriction of arterial and venous flow and therefore had no medical nexus to cystitis or prostatitis. The examiner cited medical articles in support of her conclusion. The examiner also opined that that the Veteran's hypertension was not at least as likely as not aggravated beyond its natural progression by the Veteran's cystitis or prostatitis or residuals thereof. She offered largely the same rationale and concluded that there was no pathological mechanism to allow for aggravation. The Board notes that each medical opinion addressing the theory of direct service connection relies merely on the lack of a diagnosis of hypertension in service. Therefore, the Board finds that an additional remand is necessary to afford the Veteran a VA addendum opinion as to the etiology of the Veteran's claimed hypertension disability, which provides an adequate rationale. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim could be proven without contemporaneous medical evidence"); see also Dalton v. Nicholson, 21 Vet. App. 23 (2007). 2. Entitlement to service connection for right upper extremity myopathy, to include as secondary to service-connected disability, is remanded. 3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected disability, is remanded. The Veteran contends that his diabetes is due to his period of service, to include as secondary to his service-connected disabilities. The Veteran contends that his myopathy was incurred in service, or alternatively, to his diabetes or his service-connected cystitis or prostatitis. The Veteran's service treatment records do not contain a diagnosis of diabetes or myopia. In order to determine the nature and etiology of the Veteran's claimed diabetes and myopia, the Board remanded the matter in April 2020 in order to afford the Veteran VA examinations. With regards to the claimed diabetes disability, such an examination was conducted in September 2020. The VA examination recorded a diagnosis of diabetes in 2001. The examiner opined that the Veteran's diabetes was less likely than not incurred in or caused by the claimed in-service injury event, or illness. The examiner cited a lack of diagnosis of diabetes during service, but included no other rationale. The examiner also opined that the diabetes was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. The examiner explained that after a thorough review of medical literature, he was notable to find any evidence for a causal relationship between diabetes and cystis, prostatitis, or tuberculosis with INH therapy. The examiner explained that these were medically unrelated conditions. Further, the examiner also opined that the Veteran's diabetes, diagnosed in 2001, was not less likely than not aggravated beyond its natural progression by his service-connected disabilities. In March 2021 the Board remanded this matter and found that the September 2020 VA examiner's rationale with regards to the theory of aggravation was inadequate. Specifically, the Board stated that the prior remand directives were related to any current disability associated with cystitis, prostatitis, and possible tuberculosis, which the examiner did not address. In May 2021, the Veteran was afforded a VA addendum opinion which addressed the aggravation theory of entitlement. The examiner opined that the Veteran's diabetes was not at least as likely as not aggravated beyond its natural progression by the service-connected cystitis or residuals thereof, prostatitis or residuals thereof or tuberculosis or residuals thereof. In explanation, the examiner indicated that service treatment records were negative for a diagnosis of hypertension during service, that there was not credible medical evidence that the Veteran's diabetes was aggravated by his service-connected disabilities, and that there was no pathological mechanism to allow for aggravation. The examiner acknowledged the Veteran's contentions, but pointed out that he was not qualified to ascribe symptoms to a diagnosis or etiology. In August 2021, the Board again remanded these matters in order that the RO properly consider the evidence of record since the previous Board remand, and issue an adequate SSC. The Veteran was afforded additional VA medical opinions in August 2021. Again, the examiner opined that the Veteran's diabetes was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of this conclusion, the examiner merely stated that the service treatment records were negative for a diagnosis of diabetes during active-duty service. The examiner also opined that the Veteran's diabetes was less likely than not proximately due to or the result of the Veteran's service-connected conditions. The examiner explained: "diabetes is an endocrine disorder involving the bodys ability to produce insulin and/or metabolize glucose. There is no credible medical evidence of a causal link between cystitis/prostatitis and diabetes." The examiner cited medical articles in support of her conclusion. The examiner also opined that that the Veteran's diabetes was not at least as likely as not aggravated beyond its natural progression by the Veteran's cystitis or prostatitis or residuals thereof. She offered largely the same rationale and concluded that there was no pathological mechanism to allow for aggravation. The Board notes that each medical opinion addressing the theory of direct service connection relies merely on the lack of a diagnosis of diabetes in service. Therefore, the Board finds that an additional remand is necessary to afford the Veteran a VA addendum opinion as to the etiology of the Veteran's claimed diabetes disability, which provides an adequate rationale. See Buchanan, 451 F.3d 1331, 1336 n. 1 (Fed. Cir. 2006) (noting VA examiner's opinion, which relied on the absence of contemporaneous medical evidence, "failed to consider whether the lay statements presented sufficient evidence of the etiology of [the Veteran's] disability such that his claim could be proven without contemporaneous medical evidence"); see also Dalton, 21 Vet. App. 23 (2007). The Board finds that the Veteran's claim for service connection for myopia is inextricably intertwined with the claim of service connection for diabetes. Therefore, the appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran with a VA addendum opinion regarding his claimed hypertension. All pertinent symptomatology and findings must be reported. The examiners should then provide an opinion as to whether it is at least as likely as not that the Veteran's current hypertension, was incurred in or due to his active duty. The examiner is reminded that absence of an in-service diagnosis by itself is an insufficient rationale to render a negative nexus opinion. 2. Provide the Veteran with a VA addendum opinion regarding his claimed hypertension. All pertinent symptomatology and findings must be reported. The examiners should then provide an opinion as to whether it is at least as likely as not that the Veteran's current diabetes, was incurred in or due to his active duty. The examiner is reminded that absence of an in-service diagnosis by itself is an insufficient rationale to render a negative nexus opinion. 3. Thereafter, readjudicate the claims on appeal, including the inextricably intertwined claim for service connection for myopia, and furnish the Veteran and his Representative a Supplemental Statement of the Case if any matter is not resolved to the Veteran's satisfaction. Provide an opportunity to respond before the claim is returned to the Board. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.