Citation Nr: 21021316 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-10 498 DATE: April 12, 2021 ORDER Entitlement to service connection for a heart condition is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. The preponderance of the evidence does not establish that the Veteran’s heart condition is related to service. 2. The preponderance of the evidence of record is against finding that the Veteran’s claimed COPD/lung condition began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for an entitlement to service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. 2. The criteria for an entitlement to service connection for chronic obstructive pulmonary disease (COPD) have not been met. 38 U.S.C. §§ 1110, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1972 to September 1975. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in May 2019, and the transcript is of record. Having reviewed the records, the Board finds there has been substantial compliance with the remand instructions, as an explicit negative response has been provided regarding the non-existence of the requested VA treatment records. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor her representative has raised any other issues with the duty to notify or duty to assist or with the conduct of her Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding a claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310. Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303 (b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As cardiovascular-renal disease is listed as a “chronic disease” under 38 C.F.R. § 3.309 (a), the provisions of 38 C.F.R. § 3.303 (b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease apply to the issue of heart disease. 1. Entitlement to service connection for a heart condition The Veteran contends that she was told by a military physician while in service that she had an enlarged heart. She believes this is when this condition started. She testified that her chest seemed to hurt at times while playing basketball in service. When asked what diagnosis she has for her heart condition, she testified she was not sure, but stated that she has been prescribed heart medications since about two years ago. It is not in question that the Veteran has a current disability, as she has been diagnosed with various conditions, to include cor pulmonale and congestive cardiac heart failure, during the appeal period. Her February 1975 service treatment records include a complaint of dull chest pain and report of having played basketball two days ago; however, she denied recalling any injuries during that time. The medical provider at the time indicated no evidence of nausea or shortness of breath, and although not entirely clear (due to somewhat ineligible handwriting), it seems that her chest/thorax was noted to be of normal curvature without symmetrical respiration, and “heart S1 and S2 within normal limit/without murmur S3 or S4.” See February 1975 service treatment records. There is also a chest radiographic report from September 1975, documenting a slightly enlarged heart size, but her pulmonary vascularity was found to be within normal limits and her lungs free of infiltrates. No provisional diagnosis was provided at the time. See September 1975 service treatment records. The Veteran’s separation examination also shows clinically normal heart condition, and while she reported various medical problems during that time, she denied any heart trouble, pain or pressure in chest, and palpitation or pounding heart. Although the Board acknowledges the Veteran’s contention that she sought treatment beginning in 1975/76 and has previously remanded to try to obtain those records, they were found unavailable. The earliest existing VA treatment records show that she did not have any heart diseases. See December 1995 VA treatment records and September 1999 VA treatment records (thorough medical history taken in December 1995 indicated “CARDIOVASCULAR: No heart disease or hypertension or thrombophlebitis”). The VA records consistently showed that she had normal heart rate and rhythm, with strong pulses and no murmur (see September 1999, June 2002, and January 2015 VA treatment records). It was not until April 2016 when she initially sought treatment for an unrelated condition (edema), and was eventually transferred and hospitalized for her shortness of breath, that the medical provider noticed at the time heart issues. This led to her being diagnosed with possible congestive heart failure among other conditions, and, at the time, she was noted to have smoked 1 pack per day on average, between age 18 to 51 and denied recalling seeing a cardiologist. See December 2016 VA treatment records; see also March 2017 VA treatment records, noting that she was hospitalized for congestive heart failure among other conditions. However, the Board notes that this was over 40 years after separating from service that she first complained of and was found to have any cardiac condition. Neither the Veteran nor her representative has also ever alleged that she has had any continuous symptoms for her heart condition, and considering she denied ever seeing a cardiologist when she was first diagnosed in 2016 – along with the 1990s VA records reflecting no medical history of a heart condition – her statement that she sought treatment in the 1970s is not credible. Regardless of any contentions she makes now that she had symptoms of heart problems after service, these statements in her medical records indicate that was simply not the case. The Board acknowledges that there is no medical etiology opinion that was ever provided for this condition. However, the evidence does not suggest that her heart disability is related to service, and she has not alleged that a medical professional has opined as such. As there is no suggestion the claimed condition is related to service and no persuasive evidence of continuity of symptomatology – with a clear diagnosis only made 40 years after service – an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Board acknowledges the Veteran’s belief that her heart condition is related to service, the Board finds that she is not competent to render such an opinion as the issue of nexus presents a complex medical question requiring the opinion of a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Specifically, while the Veteran is competent to report the symptoms she perceived directly through the senses, she has not been shown to have the appropriate medical training and expertise to offer a competent opinion on the etiology of heart disability. Again, she has not alleged any medical professional has ever suggested her heart condition began in or was related to service. In conclusion, the Board finds that her heart condition is not related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD) The Veteran claims that she feels she was exposed to hazards in service, while working in dusty old buildings that had poor air circulation. She testified that she received treatment in service, possibly for breathing-related issues, and stated that she began smoking cigarettes in service and smoked until about 10 years ago, after 20 years of smoking. As for any post-service treatment, she stated that she established care with VA around 1975. During the Board hearing, the Veteran’s representative stated that the Veteran has been diagnosed with possible COPD about two years ago after being hospitalized from April to May for hyperkinetic respiratory failure, and the Veteran noted that she currently takes medications for COPD. She also testified that she currently wears oxygen mask every night, but stated that no medical provider has ever provided a medical etiology. Her service treatment records, which appear to be complete, do not show diagnosis of COPD or treatment for relevant symptoms. At separation, her examination was normal and while she reported various symptoms, she denied chest pain or pressure and shortness of breath. While the Veteran complained of cough/sore throat during service, she consistently denied chest pain, shortness of breath, or wheezing during those treatment sessions and was just provided with medications, such as Tylenol and Cepacol. See August 1973 and July 1973 service treatment records. The Board also points out that the Veteran has not specifically alleged that she was diagnosed with or treated for COPD in service (“might have been something to do with breathing”), nor has she stated she experienced any chronic respiratory symptoms during service. The earliest available treatment records show no history of COPD/lung disease. See September 1978 private treatment records, see also December 1995 and September 1999 VA treatment records (thorough medical history taken in December 1995 indicated “RESPIRATORY: Patient does not have any history of TB or bronchial asthma or COPD.”). The only notations of breathing difficulty were in connection to occasions when she smoked a lot (see October 1994 VA treatment records). It appears it was not until her hospitalization in 2016 that she was noted to have any respiratory condition (admitted with “acute respiratory failure and COPD failure” among others). Although she was noted to have been admitted with acute respiratory failure and COPD exacerbation among others, she was ultimately not diagnosed with COPD, but with hypercapnic respiratory failure among others. See May 2016 VA treatment records. The Veteran was also noted to have restrictive lung disease thereafter (see March 2017, May 2019 and April 2020 VA treatment records), but this was specifically noted to be “due to obesity.” Even assuming the presence of a current disability of COPD during the appeal period based on her May 2016 hospitalization records (admitted with “COPD failure”), the Board notes that this was over 40 years after separation from service. The same goes for the respiratory failure diagnosed at that time. There is no evidence suggesting a nexus between her lung conditions and service, and she has not alleged that a medical professional has opined as such. In fact, she stated that no medical provider has ever alleged such. To the extent the Veteran contends her COPD/lung condition is related to service, the Board finds that she is not competent to render such an opinion as the issue of nexus presents a complex medical question requiring the opinion of a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As for the restrictive lung disease shown in her VA treatment records, this was specifically noted to be “due to obesity.” There is no suggestion this condition is somehow related to her service. Because there is no evidence of a lung condition during service, no persuasive evidence of continuity of symptomatology – with a clear diagnosis only made 40 years after service – an examination was not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In consideration of the evidence, the Board finds that her claimed COPD/lung condition is not related to service. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt rule does not apply. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.