Citation Nr: 21012262 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-41 933 DATE: March 3, 2021 ORDER Service connection for hypertension (HTN) is denied. Service connection for myopathic syndrome is denied. Service connection for diabetes mellitus, type II (DM) is denied. FINDINGS OF FACT 1. HTN was not present in service or within one year of discharge, and is not etiologically related to service. 2. Myopathic syndrome was not present in service or for years thereafter, and is not etiologically related to service. 3. DM was not present in service or within one year of discharge, and is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension (HTN) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2019). 2. The criteria for service connection for myopathic syndrome have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307 (2019). 3. The criteria for Service connection for diabetes mellitus, type II (DM) have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from September 1993 to January 1994. He also served in the National Guard from August 1993 to April 2009 and in the Air Force Reserves from April 2009 to March 2011. In August 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of that hearing is of record. In July 2014,the Board issued a decision, in which it denied entitlement to service connection for hypertension, myopathic syndrome (also claimed as muscle disorder), and diabetes mellitus, type II. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2015 Order, the Court vacated the Board decision and remanded the Veteran’s claims for action consistent with the directives of a Joint Motion for Remand (JMR-I). In September 2015,the Board remanded the case for further development consistent with the directives of JMR-I. In May 2016, the Board issued a second decision, in which it again denied the Veteran’s claims. In a February 2017 Order, the Court again vacated the Board decision and remanded the Veteran’s claims for action consistent with the directives of a second JMR (JMR-II). In June 2017, the Board remanded the case again for further development consistent with the directives of JMR-II. The case has been returned to the Board for further appellate action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection may 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). Active service includes (1) active duty, (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury (but not a disease) incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). There are several small exceptions carved out for specific medical conditions, such as heart attacks and strokes that occur during a period of ACDUTRA or en route to or from ACDUTRA. There is a clear distinction between individuals who serve on active duty and those who only serve on active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). An individual seeking VA disability compensation based on ACDUTRA must establish he or she was disabled or died from an injury or a disease incurred or aggravated in the line of duty. 38 U.S.C. § 101 (24). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including HTN and DM, to a degree of at least 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. When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), (citing Gilbert, 1 Vet. App. at 54). 1. Service connection for hypertension (HTN) 2. Service connection for myopathic syndrome 3. Service connection for diabetes mellitus, type II (DM) In this case, the Veteran contends that his HTN, DM, and myopathic syndrome had its onset during his service in the Air National Guard. During his August 2013 Travel Board hearing, he testified that he worked for the National Guard full-time as a technician and had "dual status" as a National Guardsman and civilian employee during that time. He noted that he wore a uniform on a full-time basis and that all of his claimed disabilities occurred during that time. He also indicated that he had private medical insurance at that time. He testified that he remembered his muscle disorder being diagnosed in 1997 or 1998. See August 2013 Travel Board hearing transcript. Initially, the Board notes that because HTN, DM, and myopathic syndrome are considered diseases and not an "injury," service connection may only be awarded by establishing that the Veteran's HTN, DM, and myopathic syndrome had their onset during, or were aggravated by, a period of ACDUTRA in relation to the Veteran's service in the reserves, rather than based on any presumptive incurrence within one year after the reserves service. Service connection would not be warranted for the same circumstances during a period of INACDUTRA. Exceptions to the requirement of an injury during INACDUTRA are for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. See 38 C.F.R. § 3.6(a). The record does not indicate, and the Veteran does not contend, that any of these three "injuries" occurred during his active service. The records show that the Veteran's HTN, DM, and myopathic syndrome did not have their onset during a period of active duty service or ACDUTRA. Personnel records show the Veteran had a period of active duty service from September 1993 to January 1994 in the U.S. Air Force, as noted above. Thereafter, he had periods of active and inactive duty training (mostly INACDUTRA) from January 1994 through August 2003 and he was discharged from the Air National Guard in April 2009. He enlisted in the Air Force Reserves in April 2009 and was discharged in March 2011. Service treatment records are negative for any evidence of HTN, DM, or myopathic syndrome during active duty or ACDUTRA from September 1993 to January 1994, January 1994 to August 2003, or April 2009 to March 2011. During the Veteran's service in the Air National Guard, September 2004 service treatment records note that his blood pressure was elevated on physical examination. A July 2009 private treatment record shows an assessment of DM, myopathic syndrome, and myopathy, and also notes the Veteran was on medication for high blood pressure. Service treatment records show diagnoses of HTN, DM, and myopathy in September 2010. A February 2009 statement from the Veteran’s private physician for years noted that the Veteran was found to have very mild muscle, non-progressive muscular disorder that could limit his overall exercise performance. However, June 2008 private treatment records note that there was evidence of myopathy that was being investigated. In July 2008, after examination, including EMG, the impression was chronic CPK elevation with a history of progressive exercise intolerance with myalgias. The examiner noted that such findings could be seen with a myopathic process or metabolic myopathy, however clinical examination and EMG were unremarkable. Furthermore, December 2008 private treatment records from Texas Neurology note that neuromuscular evaluation revealed a diagnosis of muscle pain with no evidence of a primary structural, metabolic or inflammatory muscle disease. They also note an assessment of chronic, benign CPK elevation with a normal neurologic examination. October 2008 records note the same. None of these records show that the diagnosed high blood pressure, diabetes mellitus or myopathy were related to the Veteran’s active military service, to include a period of ACDUTRA. On July 2009 VA general medical examination, the examiner noted there was no evidence of the Veteran having diabetes in the service treatment records, but the Veteran stated he had a family history of diabetes. The Veteran reported that no one ever told him he was a diabetic and he had no complications from diabetes. The examiner noted that there was no indication in the record of the Veteran having diabetes or being on medication for the disorder. The diagnosis was type 2 diabetes, not found in military, and no complications from diabetes. On examination of the muscles during the July 2009 VA examination, the Veteran reported that the he began to have difficulty with his feet in 1998 when doing heavy exercise and with playing basketball. The initial diagnosis was tendinitis. His symptoms persisted in his legs then he developed generalized exertional muscle pain. The diagnosis was myopathic syndrome of the arms and legs with exercise-induced muscle pain and elevation "CPK", which is moderately severe and progressive since its onset in 1998, which has been progressive since that time. The July 2009 VA examination report shows a diagnosis of HTN for VA purposes. On examination, the Veteran’s blood pressure readings were 144/96, 140/92, and 146/92. For the diagnosis, the examiner obtained 3 blood pressure readings on successive days: 134/92 (July 17, 2009); 140/93 (July 18, 2009); and 122/92 (July 19, 2009). A January 2021 VA examiner opined that it is less likely than not that the Veteran's HTN or DM had its onset in or is etiologically related to any period of the Veteran’s active duty, ACDUTRA, or INACDUTRA. The rationale was there are no medical records showing diagnosis or treatment for the diabetes condition or indication of high blood glucose, or signs or symptoms of HTN that started during his active duty, inactive duty for training, or active duty for training periods. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the lack of a diagnosis of HTN or DM during active duty or ACDUTRA or at discharge, and no evidence connecting the current diagnoses to active duty service, the Board does not find the Veteran's accounts of HTN and DM since service to be credible. As such, the Board finds the January 2021 VA examiner's opinion is supported, and another examination is not necessary. The January 2021 VA examiner concluded that, as there was no current pathology or diagnosis of myopathic syndrome, the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The Board notes that June 2008 private treatment records note the Veteran had “evidence” of myopathy, and there are diagnoses of myopathy and a muscular disorder in the service treatment records and private treatment records from 2008. However, the most probative medical evidence shows that the Veteran’s complaints were never confirmed by clinical testing to actually be myopathic syndrome. Furthermore, as the January 2021 examiner’s opinion was based on a thorough interview and examination of the Veteran, the Board finds the January 2021 examiner’s opinion is supported and another examination is not necessary. The record shows that the Veteran served approximately one weekend per month or two weeks out of the year on ACDUTRA. (See AF Form 526 in the personnel records and Board hearing transcript). Therefore, the evidence does not show that the Veteran's DM, HTN or myopathic syndrome had their onset during a period of ACDUTRA in the National Guard or the Reserves. Rather, it shows that these diseases occurred during the Veteran's civilian service working for the Air Force as a civilian technician. The Board notes that the Veteran's reserve unit records that had not previously been associated with the record have been obtained and associated with the claims file, but they show no evidence of complaints, treatment or diagnoses of the claimed disorders. There is no other evidence, VA or private, which indicates that the Veteran's HTN, DM or myopathic syndrome may be related to his active military service, including any period of ACDUTRA. The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that HTN and DM were initially shown more than one year after the Veteran's discharge from service. The Board acknowledges the Veteran's assertion that his HTN, DM and myopathic syndrome are due to events during his active service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed HTN, DM or myopathic syndrome and his active service or events therein. Such an opinion would require medical expertise as it would require clinical testing and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his HTN, DM or myopathic syndrome. 38 C.F.R. § 3.159 (a)(1), (2) (2019). (Continued on the next page)   For the reasons and basis stated above, the Board finds that service connection for HTN, DM or myopathic syndrome on a direct or presumptive basis is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claims, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.