Citation Nr: 21024118 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-21 748A DATE: April 22, 2021 ORDER Service connection for a heart attack is denied. Service connection for a lower back disorder is denied. Service connection for a right hip disorder is denied. Service connection for a right foot disorder is denied. Service connection for a left foot disorder is denied. Service connection for hypertension is denied. Service connection for an acquired psychiatric disorder is denied. FINDINGS OF FACT 1. At no time during the pendency of the claim does the appellant have a current disability of a heart attack, and the record does not contain a recent diagnosis of disability prior to the appellant’s filing of a claim. 2. A lower back disorder preexisted the appellant’s period of inactive duty for training (INACDUTRA) in January 2006 and was not aggravated beyond the natural progression therein. 3. A right hip disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. 4. A right foot disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. 5. A left foot disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. 6. Hypertension is not shown to be causally or etiologically related to any disease, injury, or incident during service, and is not caused or aggravated by a service-connected disability. 7. An acquired psychiatric disorder is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart attack have not been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303. 2. The criteria for service connection for a lower back disorder have not been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303. 3. The criteria for service connection for a right hip disorder have not been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.310. 4. The criteria for service connection for a right foot disorder have not been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.310. 5. The criteria for service connection for a left foot disorder have not been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.310. 6. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303, 3.310. 7. The criteria for service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.1(d), 3.6(a), 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the United States Naval and Army Reserve for numerous years, to include on active duty for training (ACDUTRA) from November 22, 1988, to January 19, 1989, in the United States Naval Reserve, and INACDUTRA from January 6, 2006, to April 27, 2006, and ACDUTRA from October 17, 2008, to October 31, 2008, in the United States Army Reserve. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2009 and May 2013 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices. In January 2015, the appellant testified before a Decision Review Officer at the RO and, in September 2016, he testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. In March 2018, the case was remanded, as relevant, to obtain outstanding VA and private treatment records. While all outstanding VA treatment records were obtained and the appellant submitted a VA Form 21-4142 (Authorization and Consent to Release Information to VA) and a VA Form 21-4142a (General Release for Medical Provider Information to VA), no specific private treatment providers were identified. Thus, as it appeared that the appellant and his representative had been under the mistaken impression that he could submit a blanket authorization form for all outstanding private treatment records, the Board again remanded the claim in October 2020 so as to allow him another opportunity to identify each specific provider. Following the solicitation of such in an October 2020 letter, the appellant, through his representative, again submitted VA Forms 21-4142 and 21-4142a without identifying any specific treatment providers. Thus, in a December 2020 letter, the appellant was again requested to provide identifying information for his private treatment provider. However, to date, he has not responded to such request. Thus, the Board finds that there has been substantial compliance with the prior remand directives, such that further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008). The case now returns for further appellate review. Service Connection A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of 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 INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National of any State. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. Further, the advantages of evidentiary presumptions, to include the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service connection for a chronic disease, do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. at 469-70, for the proposition that, “if a claim relates to a period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim”); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a heart attack. The appellant is seeking service connection for a heart attack that he claims occurred during his period of ACDUTRA in October 2008. In this regard, his service treatment records (STRs) reveal that he went to the emergency room with a complaint of shortness of breath on October 27, 2008. A final diagnosis of non-cardiac chest pain, resolved, was rendered. In this regard, a radiology report from the same day reflects that, following two views of the appellant’s chest, no active infiltrates were seen; rather, there was a suggestion of apical pleural thickening of uncertain significance. A stress test conducted the following day revealed a history of chest pain, and an impression of a small region of suspect infarction with peri-infarct ischemia in the posterior aspect of the inferior wall. An ECG was normal. Thereafter, an assessment of atypical chest pain was noted on October 29, 2008. In this regard, such STR noted that the appellant spent a night at the hospital for work-up with a positive stress test and was placed on desk duty until he was cleared by cardiology. Notably, his cardiovascular system was normal (auscultation, heart rate and rhythm, heart sounds, peripheral vascular examination were normal; no heart murmurs or edema present). On a January 2009 health questionnaire for dental treatment, the appellant reported heart trouble/chest pain, which he described as a mild heart attack in October 2008. In April 2009, a physician indicated that, while the appellant reported a previous heart attack, a medical records review revealed no myocardial infarction; rather, a diagnosis of atypical chest pain was noted. On a January 2010 health questionnaire for dental treatment, the appellant reported heart trouble/chest pain. The appellant was afforded a VA general examination in January 2012. Such examination report reflects that the size of his heart was normal; he had normal S1 and S2, and there was no evidence of S3 or S4; there was normal rate and regular rhythm with no evidence of murmurs, gallops, heaves, or thrills; and there was no evidence of congestive heart failure, cardiomegaly, or cor pulmonale. Additionally, the examiner noted that a current stress test revealed fair exercise tolerance and capacity with no diagnostic evidence of ischemia; at the maximum heart rate, no chest pain or cardiac arrhythmia was noted; and an EKG was within normal limits. Thus, the examiner found that a diagnosis of a heart attack was not possible. Further, in an April 2013 addendum opinion, the examiner found no diagnosis of cardiac/heart disease based on the following: (1) on October 29, 2008, the appellant was diagnosed with atypical chest pain; (2) an April 2009 EKG demonstrated normal sinus rhythm; and (3) based on the cardiac data available, the appellant did not have a definitive heart disorder. Further, post-service treatment records do not reveal a diagnosis of a heart attack, or reflect such on examination at any point during the appeal period. Significantly, a May 2019 VA treatment record notes that the appellant underwent a stress test, and images of his left ventricle showed no fixed or reversible perfusion defect to suggest myocardial infarction or ischemia. An impression of myocardial perfusion scan with no imaging evidence of myocardial ischemia and no evidence of myocardial infarction was provided. Thus, based on the foregoing, the Board finds that the medical evidence fails to reflect a diagnosed disability of a heart attack at any time pertinent to the pendency of the appellant’s claim. Furthermore, while he is competent to report symptoms within the realm of his personal experience, he is not competent to relate such symptomatology to a diagnosis of a heart attack. Specifically, a diagnosis of such disorder, to include the etiology of the underlying pathology causing current symptoms, is not a simple medical condition the appellant is competent to diagnose. Specifically, such a diagnosis falls outside the realm of common knowledge of a lay person as it involves interpretation of results found on physical examination and diagnostic testing, and knowledge of the cardiovascular system that cannot be identified by mere personal observation. Consequently, the appellant is not competent to render a diagnosis of a heart attack. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Therefore, his statements in such regard are afforded no probative weight. Furthermore, the appellant has not alleged, and the evidence does not show, that his reported symptoms result in functional impairment of earning capacity. See Saunders, supra. Consequently, the Board finds that, at no time during the pendency of the claim does the appellant have a current disability of a heart attack, and the record does not contain a recent diagnosis of disability prior to the appellant’s filing of a claim. Therefore, service connection for a heart attack is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim of entitlement to service connection for a heart attack, such doctrine is inapplicable and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for a lower back disorder. The appellant contends that his lower back disorder had its onset during INACDUTRA in January 2006 while performing a three mile run as part of a training exercise. However, his STRs reflect that, prior to entry into INACDUTRA in January 2006, he complained of back pain in July 2005 with an onset of such during a run for physical training in June 2005 (however, such has not been determined to have occurred during a period of verified ACDUTRA or INACDUTRA, and the appellant reports that such pain had resolved by the time he entered INACDUTRA in January 2006). An impression of sacroiliitis was noted. In January 2006, it was noted that a 3-mile run on asphalt/hard surface caused an onset of back pain. Here, it was explained that the appellant had a history of a similar problem in June 2005, which resolved. It was further explained that he complained of back problems, and the writer (unit commander/adviser) believed it to be from a previous problem with his back. An additional January 2006 STR reflects an assessment of lumbar sprain. STRs dated in February, March, and April 2006 reflect an assessment of chronic low back pain. An additional February 2006 STR indicates that the appellant was prescribed medication for his back. An additional April 2006 STR notes that the appellant’s back pain persisted without getting better. An undated STR reveals that the appellant required 90-day chronic low back pain recovery. In May 2006, appellant complained of lower back problems. In June 2007, a diagnosis of lumbar strain was noted. An August 2007 treatment record notes the appellant’s report of a back injury that occurred in January 2006. In October 2007, the appellant complained of back pain and was diagnosed with sciatica. Treatment records dated in January 2009 and January 2010 note the appellant’s reports of low back pain/lower back problems. An April 2009 treatment record indicates that the physician noted an unknown status of low back degenerative disc disease, and further evaluation was needed. A May 2009 treatment record notes a diagnosis of back pain. On VA examination in November 2009, a VA physician found a diagnosis of lumbar strain. In this regard, the examiner noted that the onset of the appellant’s back pain was at variance with the STRs. Here, he explained that, while the appellant reported the onset as January 2006, the record suggested the onset was in June 2005. Thus, the examiner concluded that the onset of the appellant’s back pain was in June 2005, and, while he could not tell if such was the same history as the appellant related, the STRs were clear. The January 2012 VA general examination report reveals a diagnosis of intervertebral disc syndrome with degenerative arthritis changes. Further, in an April 2013 addendum opinion, the examiner reviewed the entirety of the evidence of record, and determined that it was less likely than not that the appellant’s back disorder noted in July 2005 was aggravated beyond its natural progression by the January 2006 exercise test. In support thereof, the examiner reported that the medical record (June 2007 lumbar MRI) suggested chronic changes (degenerative disc disease and osteoarthritis), and that the one-time exercise test was not likely to have aggravated his back disorder beyond natural progression. The examiner also noted that the medical records demonstrated a chronic back disorder in the 2006 notes (to include in April 2006), which supported the preexisting nature of such condition. Based on the foregoing, the Board finds that service connection for a lower back disorder is not warranted. In this regard, as the appellant’s claim is based on a period of INACDUTRA, he must establish that he was disabled from an injury incurred or aggravated in the line of duty during that period of INACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson, supra. As noted above, unless “Veteran” status has been previously established for the period of INACDUTRA in question, the evidentiary presumptions-such as the presumption of sound condition at entrance to service and the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service-are not available to those who claim service connection based on a period of INACDUTRA. Paulson, supra. In the present case, the evidence indicates that the appellant’s lower back disorder preexisted his period of INACDUTRA in January 2006 and was therefore not incurred therein. The evidence also demonstrates such preexisting disorder was not aggravated by an injury during such period of INACDUTRA, to include the January 2006 exercise test. In this regard, the Board accords great probative value to the November 2009 and April 2013 VA medical opinions as such considered all of the pertinent evidence of record, to include the statements of the appellant, and provide a complete rationale, relying on and citing to the records reviewed. Moreover, the examiners offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Notably, there is no medical opinion to the contrary. The Board also considered the appellant’s assertions as to the etiology of his lower back disorder; however, as a layperson, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau, supra. In this regard, the etiology of such disorder, to include by way of aggravation, involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert, supra. Accordingly, the appellant’s opinion regarding a nexus between his lower back disorder and a period of INACDUTRA is not competent evidence and, thus, is afforded no probative weight. For the foregoing reasons, the Board finds that the claim for service connection for a lower back disorder must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claim of entitlement to service connection for a lower back disorder, such doctrine is inapplicable and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 3. Entitlement to service connection for a right hip disorder, to include as secondary to a lower back disorder. 4. Entitlement to service connection for a right foot disorder, to include as secondary to a lower back disorder. 5. Entitlement to service connection for a left foot disorder, to include as secondary to a lower back disorder. 6. Entitlement to service connection for hypertension, to include as secondary to a heart attack. 7. Entitlement to service connection for an acquired psychiatric disorder, to include adjustment disorder. The appellant’s STRs do not reveal any complaints, treatment, or diagnosis referable to a right hip disorder, a bilateral foot disorder, hypertension, or an acquired psychiatric disorder. Additionally, while his post-service treatment records indicate that he has a current diagnosis referable to such claimed disorders, they do not show, or suggest, that they are related to his military service. See January 2012 VA general examination (diagnoses of hypertension, right hip strain, adjustment disorder, and bilateral foot degenerative joint disease with mild hallux valgus); VA treatment records dated since 2015 (treatment for and diagnoses of hypertension); August 2009 private treatment record (drug information sheet from “Shop ‘n Save Pharmacy” noting Lotrel for hypertension); January 2010 treatment records (appellant reporting hypertension/high blood pressure and medications for such); VA treatment records dated since 2016 (treatment for and diagnoses of adjustment disorder and generalized anxiety disorder); and February 2020 VA treatment record (diagnosis of left foot plantar fascitis). Furthermore, while the appellant reports that his right hip and a bilateral foot disorders, and hypertension, are related to his lower back disorder and heart attack, respectively, rather than any instance of his military service, he testified that he believed that his acquired psychiatric disorder was related to the stress of his military service and later divorce from his spouse. However, as a layperson, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau, supra. In this regard, the etiology of such disorder involves a medical subject concerning an internal psychiatric process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. See Woehlaert, supra. Furthermore, as noted previously, the appellant’s STRs are entirely negative for any indication of an acquired psychiatric disorder and no relationship has been otherwise suggested by the post-service treatment records. Thus, as the evidence fails to demonstrate an indication that the appellant’s claimed disorders may be related to his military service, the Board finds that VA’s duty to assist in providing a VA examination and/or opinion is not triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (if there is no credible evidence establishing that an event, injury, or disease occurred in service, VA is not required to provide a medical examination); Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (a mere conclusory generalized lay statement that a service event or illness caused the appellant’s current disorder is insufficient to require the Secretary to provide an examination). Further, while the appellant has argued that his right hip and bilateral foot disorders may be related to a lower back disorder, and his hypertension may be related to a heart attack, he is not service-connected for such primary disabilities. Thus, service connection for right hip and bilateral foot disorders, and hypertension, on a secondary basis is not warranted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the Board finds that a right hip disorder, bilateral foot disorder, hypertension, and an acquired psychiatric disorder are not shown to be causally or etiologically related to any disease, injury, or incident during service, or, in regard to the first three disorders, caused or aggravated by a service-connected disability. Therefore, service connection for such disorders is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant’s claims of entitlement to service connection for a right hip disorder, a right foot disorder, a left foot disorder, hypertension, and an acquired psychiatric disorder, such doctrine is inapplicable and his claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.