Citation Nr: 21027377 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-62 717 DATE: May 5, 2021 ORDER Service connection for a heart disability is denied. Service connection for hypertension is denied. REMANDED Service connection for a nerve condition is remanded. Service connection for a bilateral shoulder disability is remanded. Service connection for a bilateral ankle disability is remanded. Service connection for bilateral toe arthritis is remanded. Service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's coronary artery disease (CAD) began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's hypertension clearly and unmistakably pre-existed entry to service and was not aggravated during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1953 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from several rating decisions. The Veteran testified before the undersigned Veterans' Law Judge in September 2019. A transcript of the hearing is part of the record. The Board remanded the claims for further development in January 2020. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 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). A veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Heart Disability The Board concludes that, while the Veteran has a current diagnosis of CAD the preponderance of the evidence weighs against finding that the Veteran's CAD began during service or are otherwise related to another in-service injury, event, or disease. Medical records show the Veteran was not diagnosed with CAD until 1999, decades after his separation from active service. The Veteran underwent a VA examination in August 2020 to determine the etiology of his CAD. The examiner ultimately concluded that it was less likely than not that the Veteran's cardiac condition is related to service nor is there any evidence that this condition developed within a year of separation of service. Specifically, the examiner reasoned that, after reviewing the several lay statements submitted by the Veteran, the medical evidence shows that the Veteran's CAD developed in 1999, over 40+ years after discharge from active duty. Moreover, there is no competent medical opinion of record to the contrary. In addition, while the Veteran is competent to report symptoms of his condition, he is not competent to provide a diagnosis in this case or determine that his current CAD is related to his active duty service. The issue requires knowledge of cardiovascular system and is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). For these reasons, the overall weight of the evidence is against a finding that a heart disability, including CAD, is related to the Veteran's active service. Hypertension The Veteran contends that his hypertension was aggravated as a result of his service. As discussed previously a Veteran is presumed to be in sound condition when entering service. In the present case, the Veteran's September 1953 entrance examination is silent for hypertension. However, the Veteran's military personnel record shows that he obtained a waiver of atrial hypertension in order to serve in the United States Naval Reserve prior to his active duty service. An August 2020 VA examination noted that this was evidence that the Veteran's disability preexisted his service. Accordingly, the Board must determine whether the presumption of soundness has been rebutted. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). For the following reasons, the Board finds that the presumption of soundness has been rebutted. This presumption can be rebutted only if there is clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran underwent a VA examination in August 2020 to determine the etiology of the Veteran's hypertension. As discussed previously, the examiner noted that the Veteran's disability existed prior to the Veteran's service. The examiner also found that this condition was not aggravated beyond its natural progression by his active duty service, noting that the Veteran was had benign hypertension and a waiver was given prior to service. The examiner went on to conclude that there is no evidence to suggest that active duty service resulted in a worsening of his existing benign hypertension. This shows that there is not clear and unmistakable evidence that the Veteran's pre-existing disability was aggravated during service. Thus, VA has met its burden to rebut the presumption of soundness. While the Veteran provided statements regarding symptoms associated with his hypertension, he has not stated why he believes service may have caused or aggravated his hypertension. The Veteran has not submitted any contrary medical evidence supportive of his claim that his hypertension was caused by or increased in severity during service. The Board finds the VA examiner's opinion that the Veteran's hypertension did not worsen due to service probative. Accordingly, the Board finds that the Veteran's hypertension clearly and unmistakably pre-existed service, and that the disability was clearly and mistakably not aggravated by service. Therefore, the claim for service connection for hypertension must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Remaining issues To date, no VA examination has been performed regarding these disabilities. The Board finds that remand is necessary to obtain VA examinations to properly adjudicate the claims. The matters are REMANDED for the following action: 1. Schedule a VA examination to determine the nature and etiology of the Veteran's nerve condition. The claims file should be provided to the examiner for review. All indicated tests and studies should be performed and all findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed nerve condition was caused by or is related to military service. The Veteran's lay statements regarding onset and symptomology should be recorded and considered. The rationale for the opinion must be provided. 2. Schedule a VA examination to determine the nature and etiology of the Veteran's bilateral shoulder, bilateral ankle, bilateral toe, and cervical spine disabilities. The claims file should be provided to the examiner for review. All indicated tests and studies should be performed and all findings reported in detail. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any diagnosed bilateral shoulder, bilateral ankle, bilateral toe arthritis, and cervical spine disabilities was caused by or is related to military service. In providing the above opinion, the examiner should address the Veteran's contention that he suffered from a fall in-service and that subsequently caused his later disabilities. (Continued on the next page) The Veteran's lay statements regarding onset and symptomology should be recorded and considered. The rationale for the opinions must be provided. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.