Citation Nr: 21013381 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 12-11 554A DATE: March 9, 2021 ORDER Service connection for hypertension is denied. Service connection for a cardiovascular (CV) disorder is denied. Compensation pursuant to 38 U.S.C. § 1151 for a CV disorder is denied. A temporary total rating (TTR) based on convalescence for a CV disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from August 1974 to September 1975. He worked overseas as a contractor in 2010 but was not on active duty. 2. Hypertension and a CV disorder were not shown in service, not shown to a compensable degree within one year of service, and symptoms were not continuous since service; the current diagnoses of hypertension and cardiac arrhythmia are not causally or etiologically related to service. 3. The Veteran’s need for a pacemaker is not shown to be due to carelessness, negligence, lack of proper skill, error in judgment, or any similar instance on the part of VA. 4. The Veteran is not service connection for a CV disorder and is not entitled to a TTR on that basis. CONCLUSIONS OF LAW 1. Hypertension was not incurred in service nor can it be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 2. A CV disorder was not incurred in service nor can it be presumed to have been incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2020). 3. The criteria for compensation pursuant to 38 U.S.C. § 1151 for a CV disorder have not been met. 38 U.S.C. §§ 1151, 5103(a), 5103A, 5107, 5121A (2012); 38 C.F.R. § 3.361 (2020). 4. The criteria for a TTR based on convalescence for a CV disorder have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5017 (2012); 38 C.F.R. § 4.29 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In June 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Service Connection Claims Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. As a procedural matter, the DD-214 shows that the Veteran served on active duty from August 1974 to September 1975. He received an Honorable Discharge. In a January 2010 Letter of Authorization, he was engaged as a civilian contractor scheduled to be sent to Afghanistan, Kuwait, Qatar, and the United Arab Emirates for a period from January 2010 to July 2010. He was provided government furnished service such as meals, equipment, transportation, fuel, and emergency medical support but was considered as “Key Personnel, Government Civilian” in a civil service grade. This is not a period of active duty. Hypertension For VA purposes, hypertension is defined as a diastolic blood pressure predominantly 90 mm. or greater and isolated systolic hypertension, predominantly 160 mm or greater. See 38 C.F.R. § 4.104, DC 7101, Note 1. As to a current disorder, the Veteran has been diagnosed with hypertension since at least 2010 when it was noted on a June 2010 private hospital discharge summary. A September 2020 VA examiner noted a history of hypertension since 2004; therefore, the first element of direct service connection has been met. As to an in-service incurrence, despite the Veteran’s contentions to the contrary, the service treatment records (STRs) do not reflect complaints of, treatment for, or a diagnosis of hypertension or any symptoms reasonably attributed to hypertension. Specifically, the September 1975 separation examination reflects a blood pressure reading of 110/70. Therefore, the medical evidence does not support an in-service incurrence and service connection is not warranted on a direct basis. To the extent that the Veteran claims a medical nexus, he testified that he had a current diagnosis of high blood pressure for which he was receiving treatment from VA. He commented that his blood pressure was borderline during service, but he was not diagnosed with high blood pressure; however, he related that he had heart disease and he indicated that they went “hand-in-hand.” He reported that he was not directly told that he had hypertension during service but indicated that his heart conditions made it harder for the heart to pump. The Veteran submitted a statement in September 2019 indicating that he had two occasions during service where his blood pressure was “very high.” There were issues were his feet, legs, and hands were swollen, and he had edema documented in his records. His high blood pressure, however, was not medically addressed. He stated that a physiologist and cardiology specialist linked his medical condition to his occupation on the flight line, noting that working in extreme weather conditions caused his heart to overwork and blood pressure to rise. In a September 2020 VA examination, the examiner diagnosed hypertension since 2004. The Veteran stated that he had high blood pressure in 1974 but did not received treatment for the condition. He further indicated that he was medically discharged from service and was still under the care of a doctor. Based on the results of the examination, the examiner concluded that hypertension was less likely than not incurred in service, as there was no diagnosis of the disorder during service or within one year of discharge. A second medical opinion was submitted in September 2020 and the examiner concluded that hypertension was less likely than not incurred in service, as a review of STRs and medical records did not show evidence of a diagnosis, treatment, or symptoms suggestive of hypertension. Further, the Veteran did not meet the Joint National Committee (JNC) criteria for the diagnosis of hypertension while on active duty or within one year of separation. In support of the appeal, the Veteran submitted a statement in October 2020 indicating that he had been on high blood pressure medication since 2010. Significantly, he was not on active duty at any point in the 2000s. Rather, although he was working overseas for a period of time, he was working as a contractor. Therefore, to the extent that hypertension started in 2004 or in 2010, or at any time during that time frame, service connection is not warranted based on his duty status during that time. As such, the September 2020 VA examination and medical opinions are highly probative evidence and weigh against the appeal. The examiners’ findings are credible and competent, as they were provided with thorough rationales with regards to hypertension and its lack of connection to service. While the Veteran is competent to report that he was told during service that his blood pressure was “very high,” there is no evidence to establish an in-service diagnosis of hypertension. In light of the competent medical evidence indicating that Veteran’s hypertension was not related to a period of active duty, the medical evidence does not support the appeal on a direct basis. As to presumptive service connection, no chronic disease or injury was shown in service. Despite the Veteran’s contentions to the contrary, the STRs do not reflect elevated blood pressure readings. Also significant is that his blood pressure was 110/70 at the time of service separation, which is not considered hypertension for VA purposes. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since service. Specifically, the Veteran was discharged in 1975 and symptoms were not identified until 2004 at the earliest, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. As noted, the Veteran separated from service in 1975 but did not note symptoms until 2004 at the earliest, with treatment beginning in 2010. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. It is again noted that he was not on active duty at any point during the 2000s. Therefore, presumptive service connection on any basis is not supported by the medical evidence.   Cardiovascular Disorder Records reflect that the Veteran underwent cardiac electrophysiology study, intracardiac mapping and radiofrequency catheter ablation in June 2010 for atrial flutter. Therefore, a current disorder is shown. As to an in-service incurrence, the STRs are negative for complaints of, treatment for, or a diagnosis of a CV disorder or arrhythmias. The Veteran was treated for chest pain associated with shortness of breath, cough, and nasal congestion in November 1974 and was diagnosed with tonsillitis. In December 1974, he sought treatment for pain on the right side of the chest and a hacking cough. The diagnosis was upper respiratory infection. In both cases, there was no indication that the chest pain was cardiac-related. The separation examination reflects a normal clinical evaluation of the Veteran’s heart. Therefore, the medical evidence does not support an in-service incurrence of a CV disorder. To the extent that the Veteran asserts a medical nexus, the record reflects that his cardiac complaints began with an atrial flutter/bradycardia in 2004/2005. As noted, in 2010, he was treated overseas but not on active duty at that time. A March 2011 examiner diagnosed non-ischemic cardiomyopathy with atrial flutter. The examiner concluded that the CV disorders were more likely than not related to a history of polysubstance abuse and dependence. In a January 2014 statement, Dr. HC indicated that he had been the Veteran’s physician since June 2010. He reflected that the Veteran had been diagnosed with atrial flutter since 2004 and in 2010 was found to have cardiomyopathy and advance conduction system disease that required radiofrequency ablation and the implantation of a biventricular pacemaker and defibrillator. Dr. HC concluded that the stress associated with working in an active combat environment was very likely a significant contributor to the Veteran’s decline in heart function and progression of his conduction system disease. In March 2015, Dr. CL indicated that the Veteran developed congestive heart failure in 2010 and was diagnosed with left ventricular dysfunction. After reviewing the treatment for the heart condition, Dr. CL concluded that the arrhythmia and heart failure were exacerbated by difficult working conditions at that time, including environmental hazards such as working in extreme temperatures. At the September 2018 Board hearing, the Veteran testified that he had a pacemaker and defibrillator installed in 2010. He was told he had an irregular heartbeat in service and was scheduled for an examination but was discharged before he could finish treatment. He indicated that he did not see a doctor for his irregular heartbeat right away; he started seeing a doctor in 1998 but it was not on a regular basis. He received a stress test at that time but was told “not to worry about it” if his heart was not bothering him. The Veteran reflected that he was never told by a doctor that the symptoms he was having were related to the CV symptoms he had in service. He also denied using narcotics during service but admitted to his VA examiner that he drank a few times. He testified that he had congestive heart failure and indicated that it was due to his arrhythmia because his left ventricle did not pump well. In a December 2018 private consultation with Dr. DE, the Veteran noted a history of dilated cardiomyopathy and conduction disease. Dr. DE found that the Veteran developed cardiomyopathy while working in Iraq and Afghanistan. He had a flutter prior and may have had a rate-related cardiomyopathy or other issues contributing to conduction disease and non-ischemic cardiomyopathy. Dr. DE noted that genetic testing revealed that the Veteran appeared to have a copy of a likely pathogenic variant in the gene Lamin A, which could cause congenital muscular dystrophy and dilated cardiomyopathies. However, it was not 100 percent certain that the dilated cardiomyopathy was caused by the genetic variant. In a September 2020 VA examination, the examiner noted an implanted cardiac pacemaker, implanted automatic implantable cardioverter defibrillator, and atrial flutter. The Veteran claimed cardiomyopathy but there was no evidence to support this conclusion. He was treated for atrial flutter and was found to have ventricular tachycardia. His heart rate was slow, and a pacemaker was inserted as a lifesaving measure. The Veteran’s heart failure was caused by the atrial flutter, but he did not have congestive heart failure. Based on the results of the examination, the examiner concluded that the Veteran’s CV disorder was less likely than not caused by service, as there were no medical records that supported a cardiac condition while in service. In a separate September 2020 VA medical opinion, the clinician concluded that the Veteran’s CV disorder was less likely than not caused by service, as a review of STRs and medical records did not show evidence of a diagnosis, treatment, or symptoms suggestive of a CV disorder while on active duty or within one year of separation. The Veteran’s murmur was a physiologic murmur and not related to a cardiac condition. The clinician explained that a functional murmur was a heart murmur that was primarily due to physiologic conditions outside of the heart, as opposed to structural defects in the heart itself. Based on the above, the September 2020 VA examination and VA medical opinions are highly probative and weigh against the appeal. The examiners’ findings are credible and competent, as they were provided with thorough rationales with regards to the Veteran’s CV disorder and its lack of connection to service. The medical evidence indicated that the CV disorder began many years after active duty as he was diagnosed with an atrial flutter in 2004 and received a pacemaker in 2010. While there is competent medical evidence that the Veteran developed a CV disorder while working in Iraq and Afghanistan in 2010 and his heart problems were exacerbated by that work, the evidence indicates that this was during his time working as a civilian contractor, not during the active duty period from 1974 to 1975. Further, Dr. DE suggested that the CV disorder may be related to a genetic disorder; however, the Board need not reach a decision on that issue as the Veteran was not on active duty at the time of the development of his current CV disorder. In addition, the private clinicians did not establish a medical nexus between active duty in 1974-1975 and the treatment for arrhythmia in 2010 or the complaints in 2004. In fact, their attribution to the symptoms due to the work environment in 2010 weighs against a nexus with active duty in 1974-1975. In light of above, the medical evidence does not support a finding that the Veteran’s CV disorder is related to active duty. As to both the service connection claims, the Board has considered the Veteran’s lay statements that hypertension and a CV disorder were caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claims for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Compensation Under § 1151 An appellant disabled as a result of VA medical treatment may receive compensation for a qualifying additional disability in the same manner as if such additional disability were service-connected. 38 U.S.C. § 1151. An additional disability is a qualifying disability if: (1) it was not the result of the appellant’s willful misconduct; (2) the disability was caused by VA hospital care, medical or surgical treatment, or examination furnished the appellant under any law administered by the VA; and, (3) the proximate cause of the disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or the proximate cause of the disability was an event not reasonably foreseeable. 38 U.S.C. § 1151(a). In determining whether an appellant has an additional disability, VA compares the appellant’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the condition after the care or treatment is rendered. The additional disability or death must not have been due to the appellant’s failure to follow medical instructions. 38 C.F.R. § 3.361. To establish actual causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in additional disability or death. Merely showing that an appellant received care, treatment, or examination and that he or she has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose or properly treat the disease proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c). To satisfy the first prong of proximate causation, it must be shown that the VA hospital care, medical or surgical treatment, or examination caused the appellant’s additional disability or death and that: (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or that (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the appellant’s or, in appropriate cases, the appellant’s representative’s informed consent. The second prong of proximate causation requires that the appellant’s additional disability or death be an event that was not reasonably foreseeable. This fact is to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of the event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures outlined in 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). On the October 2019 statement, the Veteran indicated that he was completely pacemaker dependent because of excessive medical treatment, bad medical advice, and not being advised of the risk. His conduction system was damaged trying to ablate the atrial flutter and he had to have a pacemaker installed. He was told he was at risk if he did not get the ablation and could not refuse treatment. Afterwards, however, he still suffered from flutters and atrial fibrillation, had an episode of ventricle tachycardia, and was on many heart treatment medications. In a September 2020 VA medical opinion, the clinician noted that the Veteran was diagnosed with CV issues many years after separation. He sought and received treatment from both VA and private providers. The examiner found that treatment was appropriate and timely, accepted protocols were followed, and the standard of care was met. Therefore, the clinician concluded, it was less likely as not that the claimed condition was caused by or became worse as a result of VA treatment, additional disability from careless, negligence, lack of skill, or similar incidence of fault on the part of the VA personnel or additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider, and/or failure on the part of VA to timely diagnose and/or properly treat the claimed disability allowed it to progress. The Veteran submitted an additional statement in November 2020 indicating that he was discharged from a VA hospital to a private hospital in June 2010. He was under the impression that an ablation would not only get rid of his atrial flutter but was his only option. The Veteran stated that he could have been given medications, a beta blocker, or cardioversion to control his atrial flutter. He did not want a pacemaker and stated that it was installed without his consent at the private hospital. He felt that being sent home to wait for a second ablation was gross negligence because his symptoms worsened. Furthermore, the ablation did not get rid of his atrial flutter. Based on the above, the Board finds that an additional disability was not caused by VA medical treatment. The evidence does not reflect that the treatment caused the Veteran’s atrial flutter; rather, he argued that his treatment did not get rid of his disorder. In addition, a medical opinion was obtained to specifically address whether VA care was careless, negligent, lacked skill, or other similar incident of fault and the clinician found that it did not. There is no medical opinion to the contrary. Therefore, the medical evidence does not support the appeal. Further, the Veteran, as a lay person, is not competent to offer a medical opinion as to whether the standards of medical care were met. Therefore, his statements are given less probative weight. As such, the competent evidence weighs against the appeal and it is denied. Temporary Total Rating Based on Convalescence for a CV Disorder A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. The Veteran filed a claim for a temporary total evaluation for a period of post-surgical convalescence following surgery for a CV disorder. In the instant decision, the Board finds that the CV disorder was not related to service. Accordingly, as service connection is not in effect for a CV disorder, a TTR based on convalescence for the heart is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, Associate Attorney 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.