Citation Nr: 21011654 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-47 445 DATE: March 2, 2021 ORDER Entitlement to service connection for type 2 diabetes mellitus (DM) is denied. Entitlement to service connection for coronary artery bypass graft (CABG) surgery, to include as secondary to service-connected cardiac arrythmia, is denied. Entitlement to service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. The Veteran’s DM did not manifest in service, or to a compensable degree within the applicable presumptive period, and the disability is not otherwise etiologically related to an in-service injury, event, or disease. 2. The Veteran’s CABG is not secondary to service-connected cardiac arrythmia, and is not otherwise related to an in-service injury or disease. 3. The preponderance of the evidence of record is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. The criteria for service connection for DM are not met. 38 U.S.C. §§ 1110, 1112, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). 2. The criteria for service connection for CABG surgery due to service or service-connected cardiac arrythmia are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for an acquired psychiatric disorder are not met. 38 U.S.C. §§ 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1966 to May 1970 and from November 1976 to November 1992. In November 2019, the Board of Veterans’ Appeals (Board) remanded the claim for additional development. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. Certain chronic diseases will be presumed related to service if such diseases were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran’s favor. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Service connection for DM The Veteran contends that he was diagnosed with DM within one year of separation from active duty service. The question for the Board is whether DM manifested in service, was manifest to a compensable degree within an applicable presumptive period, or is otherwise related to service. The Board concludes that, while the Veteran has a current diagnosis of DM, which is a chronic disease under 38 U.S.C. § 1101 (3);38 C.F.R. § 3.309 (a), it did not manifest in service or to a compensable degree within a presumptive period, and continuity of symptomatology is not established. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; Walker, supra; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Also, the preponderance of the evidence weighs against finding that the Veteran’s DM is proximately due to or aggravated by a service-connected disability. VA treatment records show the Veteran was not diagnosed with DM until 2001, nearly a decade after his separation from service and at least 8 years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of diabetes since service, he is not competent to provide a diagnosis in this case or determine that any purported symptoms were manifestations of DM. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Service treatment records (STRs) are negative for any findings related to diabetes. None of the post-service evidence provides any probative medical findings relating the Veteran’s DM to service. An October 2003 VA primary care note indicated that the Veteran was diagnosed with DM one year earlier by Dr. E.G. In November 2003, the Veteran had his first appointment with the VA diabetic clinic. He reported being diagnosed with DM around 2002. During his May 2019 Board hearing, the Veteran stated that he was diagnosed at the VA Medical Center in Louisville, Kentucky with DM within one year of separation from his active service. He reported being prescribed a medication to control his DM, as well as instructed on how to maintain a diabetic diet. In January 2020, the Veteran underwent a VA examination for DM. The Veteran was diagnosed with DM. His DM was managed by a restricted diet, prescribed oral hypoglycemic agents, and a daily insulin injection. The examiner opined that the Veteran’s DM was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the medical records showed that the Veteran was diagnosed with DM around 2001 by a private physician, Dr. E.G, per a VA primary care note. The diagnosis was confirmed by a VA physician in October 2002. Although the Veteran maintained that he was diagnosed with DM within a year of military retirement, the examiner found no medical support for the assertion as the medical records show a diagnosis of DM in the early 2000s. These medical records are near-contemporaneous to the period of time in which the diagnosis was reported to have been made, which helps increase confidence in their accuracy. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Further, because the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with competent, credible and probative evidence of attributable continuity of symptomatology, the claimed conditions cannot be presumed to be related to service. 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). Consequently, the Board gives more probative weight to the VA examiner that rendered the January 2020 opinion. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran’s claim, and it must be denied. 2. Service connection for CABG surgery The Veteran asserts that his CABG surgery is secondary to, (aggravated beyond its natural progression by), his service-connected cardiac arrythmia. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or is aggravated beyond its natural progression by, a service-connected disability. The Board concludes that, while the Veteran has a current coronary artery disability, the preponderance of the evidence is against finding that the Veteran’s coronary artery disability is proximately due to or the result of, or aggravated beyond its natural progression by his service-connected cardiac arrythmia. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). In August 2014, the Veteran underwent a CABG. In October 2014, the Veteran underwent a VA examination for heart conditions. It was noted that the Veteran underwent CABG surgery. The VA examiner opined that the Veteran’s CABG surgery was less likely than not proximately due to or the result of the Veteran’s service-connected cardiac arrythmia as the risk factors are age, male sex, family history, hypertension, smoking, obesity, and diabetes. The Board has found that the October 2014 VA opinion was inadequate as the examiner did not provide a rationale for his decision based on the facts, but instead listed risk factors. Also, the examiner did not address whether the Veteran’s service-connected heart disability aggravated his coronary artery graft bypass. An April 2018 image study showed interval sternotomy sutures with coronary artery bypass graft surgery changes. An April 2019 image study showed sternotomy wires and coronary artery bypass graft markers. During his May 2019 Board hearing, the Veteran noted that a VA physician at the VA Medical Center in Louisville, Kentucky recently informed him that his coronary artery graft bypass was, in part, due his service-connected heart condition. In January 2020, a VA examiner opined that the Veteran’s CABG was less likely than not proximately due to or the result of the Veteran’s service-connected cardiac arrythmia. Medical literature notes that coronary artery disease is thought to begin with damage or injury to the inner layer of a coronary artery, sometimes as early as childhood. The damage may be caused by various factors, including smoking, high blood pressure, high cholesterol, diabetes or insulin resistance, or a sedentary lifestyle. Based on the cited peer-reviewed information from the Mayo Clinic, the Veteran’s cardiac arrythmia does not cause coronary artery disease or lead to coronary artery graft bypass. Also, the examiner opined that the Veteran’s CABG was less likely than not permanently aggravated by the Veteran’s service-connected cardiac arrythmia. A baseline level of severity could not be established as medical evidence is not sufficient to support a determination of a baseline level of severity. Regardless of an established baseline, cardiac arrythmia is an electrical phenomenon in the conduction system of the heart. Coronary artery disease aggravation would involve the circulatory system of the heart muscle. These are two different systems, and there is nothing about cardiac arrythmia that would lead to an increase in coronary artery disease beyond its usual natural progression. Basically, premature heart beats do not cause cholesterol, etc. to stick to artery walls (coronary artery disease) more than would otherwise be expected. As noted above, coronary artery disease is thought to begin with damage or injury to the inner layer of a coronary artery, sometimes as early as childhood. The damage may be caused by various factors, including smoking, high blood pressure, high cholesterol, diabetes or insulin resistance, or a sedentary lifestyle. While the Veteran believes his CABG is proximately due to or the result of/aggravated beyond its natural progression by his service-connected cardiac arrythmia, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because 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). Consequently, the Board gives more probative weight to the competent medical evidence. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran’s claim, and it must be denied. 3. Service connection for an acquired psychiatric disorder The Veteran contends that his depression began during active duty service. Alternatively, the Veteran asserts that his depression is secondary to, or aggravated beyond its natural progression, by his service-connected cardiac arrythmia. The question for the Board is whether the Veteran has a current psychiatric disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the Veteran does not have a current diagnosis of an acquired psychiatric disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Insomuch as the Veteran has attempted to establish a diagnosis of an acquired psychiatric disorder through his own lay assertions, the Board finds that the Veteran is not competent to provide a current diagnosis of such due to the medical complexity of the matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007) (“sometimes the layperson will be competent to identify the disability where the disability is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). Thus, the Veteran is not competent to render such a diagnosis. The Veteran’s April 1966, April 1970, August 1976, May 1981, and May 1988 examinations revealed normal psychiatric results. During an October 1992 Report of Medical History, the Veteran reported no loss of memory or nervous trouble of any sort, yet noted depression, excessive worry, and frequent trouble sleeping. However, his October 1992 retirement examination noted a normal psychiatric evaluation. A September 2014 VA treatment note indicated that the Veteran refused a treadmill cardiology test, reporting anxiety when walking on the treadmill. During a June 2018 VA audiology screening, the Veteran reported claustrophobia and anxiety when he was placed in an enclosed booth for testing. During his May 2019 Board hearing, the Veteran noted that he experienced depression and anxiety during active service and that his anxiety and depression had continued since. In December 2019, the Veteran underwent a VA examination for mental disorders. The claims file was reviewed. The VA examiner found that the Veteran did not have, or has ever had, a mental disorder that met the DSM-V criteria. VA treatment records showed no history of a chronic mental disorder. Primary care screeners for depression were all negative. There were two mentions to providers of anxiety related to 1) running on a treadmill for a cardiac test, and 2) being in an enclosed booth for a hearing test. These issues were not so severe as to warrant follow-up care. No other neuropsychiatric complaints were reported. He reported one week of inpatient psychiatric care in the 1980s. At that time, his sister was kidnapped and sexually assaulted and he had failed his military training, so he attempted to kill himself by cutting his right wrist. He had not been treated or been hospitalized since his inpatient psychiatric care in the 1980s. On examination, the Veteran was oriented in all spheres, hygiene was adequate, mood was “real bad,” affect was appropriate, eye contact was good, level of activity was normal, manner was cooperative, thought was logical and goal directed, and speech was normal. Although the Veteran reported recent difficulty with memory, he showed no overt problems with memory, concentration, and attention during the evaluation. The Veteran reported mild occasional feelings of tiredness and depression with onset a few months earlier because he was not service connected for an acquired psychiatric disorder and the VA did not locate a record of his psychiatric hospitalization in the 1980s, but these are not DSM-V conditions. No significant social or occupational difficulties were present. Further, prior to this examination, there had not been a completed medical examination for the Veteran which diagnosed him with a psychiatric disorder per DSM-V. Notably, the record did not show that the Veteran received psychiatric treatment. Importantly, service connection may only be granted for a current disability; when a claimed disability is not shown, there may be no grant of service connection. See 38 U.S.C. §§ 1110, 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability). “In the absence of proof of a present disability there can be no valid claim.” See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the record contains no current diagnosis of a psychiatric disability. As the Veteran is not currently diagnosed with a psychiatric disability, his service connection claim must be denied. As there is no current disability, a discussion of any in-service incurrence or aggravation of a disease or injury, or nexus, is unnecessary. Entitlement to service connection for an acquired psychiatric disorder is denied. Further, although extensive medical records of record reflect treatment for multiple other medical conditions, such records are negative for complaints for a psychiatric disability until the Veteran’s October 1992 Report of Medical History. However, during his October 1992 retirement examination, the Veteran had a normal psychiatric evaluation. Notably, the Veteran’s records are negative for treatment for a psychiatric disability. Post-service, the Veteran routinely denied having depression, mood swings, and suicidal thoughts or ideations. He was alert and oriented in all spheres. Mood, judgement, and affect were appropriate. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.