Citation Nr: 21028709 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-11 447A DATE: May 11, 2021 ORDER Service connection for polymyositis is denied. Service connection for a patent foramen ovale (PFO) is denied. FINDINGS OF FACT 1. The Veteran's polymyositis is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. The Veteran's PFO is not shown to be causally or etiologically related to any disease, injury, or incident in service. CONCLUSIONS OF LAW 1. The criteria for service connection for polymyositis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for service connection for a PFO have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2000 to July 2004. The Veteran contends that he is entitled to service connection for polymyositis and service connection for a patent foramen ovale (PFO). This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the case for additional development. The case returns to the Board at this time for further appellate review. The Board notes that the record indicates that the Veteran received medical treatment at Duke University Medical Center, but such medical treatment records are not in the claims file. In a January 2020 letter, VA asked the Veteran for authorization to obtain medical treatment records from Duke University; and VA stipulated that the Veteran respond to this request within 30 days. The Veteran did not do so. Consequently, as VA requires action on the Veteran's behalf to obtain such records and he has not complied with the Agency of Original Jurisdiction's (AOJ's) requests in such regard, VA has no further duty to assist him in obtaining such outstanding private records. See Wamoff v. Brown, 8 Vet. App. 517, 522 (1996) (the duty to assist in the development and adjudication of a claim is not a one-way street); Wood v. Derwinski, 1 Vet. App. 190, 193, reconsideration denied, 1 Vet. App. 406 (1991) (per curiam) (if a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence). Service Connection 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) [(table)]. 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). 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 polymyositis The Veteran contends that he is entitled to service connection for polymyositis. The Veteran's service treatment records (STRs) are silent for any complaint, diagnosis, or treatment of polymyositis during the Veteran's active service. There is also no complaint, diagnosis, or treatment of polymyositis from the years immediately following the Veteran's active service. The evidence of record is inconsistent as to whether the Veteran has polymyositis. In a September 2014 treatment note, the Veteran was diagnosed with rhabdomyolysis, and the examiner referred him for a muscle biopsy. In an October 28, 2014 private treatment record, the examiner noted that the Veteran needed a muscle biopsy to rule out polymyositis. In an October 29, 2014 treatment note, the Veteran reported that he does weightlifting and cardio. He had also been taking testosterone supplements from GNC because his testosterone levels were low; he started himself on this therapy. The Veteran stated that, when he was initially evaluated for rhabdomyolysis or myositis over a month ago, he was on TriCor, which was thought to be putting him at risk for elevated CKs and myositis. He continued to have elevated creatine kinase (CK) levels and myositis despite stopping the medication. The examiner noted that the Veteran had not had a muscle biopsy. In a November 2014 treatment note, the Veteran was noted to have a history of elevated CK levels for many years. The Veteran complained of occasional muscle pain. The examiner stated that the Veteran's muscle weakness was chronic myositis, which could be contributing to his bilateral breast pain. In a December 2014 treatment note, the examiner noted that the Veteran was two weeks status post left thigh muscle biopsy for elevated creatine phosphokinase (CPK) levels. The Veteran was diagnosed with rhabdomyolysis, and he complained of chest pain, which the examiner thought may be associated with his myositis. In a February 2015 VA Physical Medicine Rehab Outpatient E&M Note, the Veteran reported that gradual weakness started about 10 years ago. He noted that he is now unable to run more than 2 miles where before he could run 10 miles or more. He lives in a 3-story home, and he has fatigue and shortness of breath when climbing the stairs. He has difficulty getting up from a seated position, and he has diffuse myalgias. The examiner gave an assessment of possible newly diagnosed polymyositis. In a March 2, 2015 treatment note, the examiner noted that the Veteran had recently been diagnosed with polymyositis. The examiner stated that the Veteran was a body builder with very large pectoralis major muscles, and he had been referred to plastic surgery because of bilateral ptosis. The examiner was uncertain as to whether any surgical procedure would be of value to the Veteran because of the small degree of deformity. In a March 25, 2015 treatment note, the Veteran was noted to have undergone a workup for possible polymyositis, and the Veteran stated that he was told he had polymyositis. However, the examiner reported that biopsy of the thigh muscle was non-diagnostic. The Veteran stated that he has generalized muscle weakness, but he is still able to walk and function normally. In an April 2015 treatment note, the Veteran was noted to have myalgias and elevated CPK level. The examiner observed that the CPK had gone down over time, which along with normal strength and muscle pathology report, do not indicate inflammatory muscle disease as polymyositis very strongly. The examiner stated that the muscle biopsy report revealed subtle and nonspecific findings. In a November 2015 treatment note, the examiner noted that the Veteran had previously been seen by him in March 2015, at which time his complaints were of bilateral gynecomastia. At that time, there was a question of polymyositis being a part of his diagnosis, and he was asked to return after this was completely resolved or treated. The Veteran returned at this time. The examiner noted that the Veteran is a body builder with excellent development of his pectoralis major muscles and biceps. In an August 2016 treatment note, the examiner reported that the Veteran was currently being worked up for myopathy. The Veteran had complained of proximal pain and had persistently elevated CPK level, but a muscle biopsy showed nonspecific findings. The examiner also stated that the workup so far showed a mildly elevated CPK level with nonspecific muscle biopsy findings. In a September 3, 2016 treatment note, the Veteran was noted to have a history of chronic muscle pain described as extremely sore muscles. The Veteran had experienced weakness with walking and going up stairs. The Veteran complained of body aching similar to past exacerbations. The examiner stated that the Veteran had chronically elevated CK levels. The examiner diagnosed the Veteran with myalgias. In a September 8, 2016 treatment note, the Veteran complained of weakness in his four extremities. He had elevated CK levels, but he did not have significant mm swelling or other overt signs of rhabdomyolysis, except for complaints of myalgias. The Veteran felt like the weakness and pain were getting worse, and he was frustrated that no one seemed to know what the problem was. The examiner noted that the Veteran had multiple EMGs and NCSs that have been normal, and he had a muscle biopsy in December 2014 that demonstrated non-specific abnormalities. The examiner noted that the Veteran used to work out constantly and was in excellent physical condition with significant muscle mass. The Veteran noted that he was now flabbier than he used to be, and he had lost much of his prior bulk. He stated that, every two or three months, he will fall while walking due to weakness. In a January 2019 VA Primary Care Telephone Encounter Note, the examiner gave an assessment of myalgias, and he ruled out polymyositis. In a February 2020 VA Addendum, the examiner reported that the Veteran does not present findings consistent with an active inflammatory muscle disease such as polymyositis or dermatomyositis. His labs showed a wide variation in CPK levels without a specific pattern. The examiner observed that the Veteran presented with larger than normal muscle mass; and there was no proximal or distal muscle weakness, atrophy, or fasciculations. The Veteran exercised regularly with weights and other equipment. The examiner noted that the Veteran was evaluated for inflammatory muscle disease, but the findings were nonspecific and nonconclusive. In the September 2019 Board decision, the Board observed that the evidence of record was in conflict as to whether the Veteran had polymyositis. Thus, the Board remanded the case to clarify his diagnosis and determine if any current muscle disability was related to active service. At an October 2019 VA examination, the VA examiner diagnosed the Veteran with rhabdomyolysis. The Veteran reported suffering from bilateral shoulder pain, hip pain, knee pain, and some weakness since a long time ago. The Veteran's muscle injury was noted to affect Group II (muscles of the shoulder girdle), Group XVI (pelvic girdle muscles), and Group XVII (pelvic girdle muscles). There was damage to muscle group XVII such that the Veteran was unable to rise form a seated and stooped position and maintain postural stability without assistance of any type. The Veteran exhibited bilateral consistent cardinal signs and symptoms including loss of power, weakness, lowered threshold of fatigue, and fatigue pain. The October 2019 VA examiner determined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner found that the Veteran does not have a polymyositis condition but rather has rhabdomyolysis. The VA examiner observed that the Veteran does not have the criteria for polymyositis, as seen in a 2014 muscle biopsy and EMGs. The VA examiner also determined that the rhabdomyolysis is not related to any event during service, since the etiology or cause is not related to any accidents, traumas, or any direct cause except heavy exercises or medications. The VA examiner noted that the Veteran usually lifts weights in the gym; and the condition is also related to medications, such as Tricor, that the Veteran used to take. The VA examiner further noted that the condition had its onset years after his discharge from active service. No other evidence of record shows a direct causal relationship between the Veteran's claimed polymyositis and his active service. Based on the foregoing, the Board finds that the Veteran's claimed polymyositis is not shown to be causally or etiologically related to any disease, injury, or incident in service. Thus, service connection for polymyositis is not warranted. The Board has considered the Veteran's statements that he has polymyositis that is caused by or related to his active service. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the nature, etiology, or cause of his claimed polymyositis. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of such disorders 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 v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to his claimed polymyositis are not competent evidence and, consequently, are afforded no probative weight. Moreover, the Board finds the opinion of the October 2019 VA examiner to be the most probative evidence of record concerning whether the Veteran has polymyositis that is related to his active service. The VA examiner's rationale is logical and well-reasoned and based on consideration of the Veteran's claims file, reported history, service treatment records, medical records, and post-service history. Thus, the Board is satisfied that the October 2019 VA examiner's opinion is competent, credible, persuasive, and probative for deciding this appeal. Based on the above, the Board finds that the preponderance of the evidence is against a grant of service connection for polymyositis. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and his claim of service connection for polymyositis must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Entitlement to service connection for patent foramen ovale (PFO) The Veteran contends that he is entitled to service connection for a patent foramen ovale (PFO). The Veteran's service treatment records (STRs) reflect treatment for chest pain related to pericarditis. The Veteran is currently service connected for history of pericarditis with left ventricular hypertrophy and mild pulmonic insufficiency with transient ischemic attack syndrome. However, the STRs are silent for any complaint, diagnosis, or treatment of a PFO during the Veteran's active service. There is also no complaint, diagnosis, or treatment of a PFO from the years immediately following the Veteran's active service. In a June 2, 2014 treatment note, the Veteran was noted to have had a transient ischemic attack (TIA) on March 26, 2014 with a transthoracic echocardiogram (TTE) and bubble study demonstrating a small interatrial shunt by passage of agitated saline only with Valsalva. The Veteran related episodic left arm and muscle numbness. The examiner questioned whether the patient is continuing to suffer TIAs secondary to paradoxical emboli through a PFO. The examiner opined that, if this is the case, the Veteran would be a candidate for percutaneous closure of his PFO rather than anticoagulation. The examiner recommended that the Veteran follow up with his outpatient neurologist, and if the neurologist concurred that his complains of numbness and weakness were secondary to TIA, then the examiner would consider interventional cardiology for PFO closure. A June 25, 2014 private physician letter reported that the Veteran had a history of cardiomyopathy, which alone places him at risk of his TIAs. The examiner stated that the PFOs only complicate or increase such risk. He also stated that closure of the PFO will not likely affect his cardiomyopathy, and with or without the closure, he will likely need anticoagulation as a prophylaxis against strokes. In a July 2014 VA Caregiver Certificate, the Veteran stated that he has a heart murmur and a hole in his heart, and he cannot do the things he used to be able to do. In a July 9, 2014 treatment note, the Veteran gave a history of chest pain and tightness periodically with exertion described as substernal without radiation. The chest pain lasted several minutes but generally occurred several hours after a strenuous workout. The examiner noted that the Veteran had a pending appointment at another hospital with interventional cardiology to discuss PFO closure. The Veteran continued to complain of periodic left arm and hand weakness, left leg weakness, and positional light-headedness. In a September 24, 2014 VA TBI Note, the Veteran was noted to have been diagnosed with a TIA, and the incident was thought to be due to a PFO for which he had seen cardiology. The cardiologist had also diagnosed him with hypertrophic cardiomyopathy due to LVH. In a September 29, 2014 treatment note, the Veteran stated he had a cardiology evaluation at an outside hospital, and no surgery was advised regarding a PFO. In a March 2015 treatment note, the Veteran was noted to have frequent TIAs. The examiner stated that the Veteran had a workup one year ago and was found to have a PFO by a cardiologist; and he was referred to another hospital, but no procedure was done. He was also seen recently by another cardiologist who did a transesophageal echocardiography (TEE) and did not find a PFO at that time. In an April 2015 treatment note, the examiner noted that the Veteran was referred for PFO closure due to suspected recurrent TIAs, but a follow-up TEE by a cardiologist did not suggest a PFO. In a July 2015 treatment note, the Veteran told the examiner that a cardiologist found no PFO. In an October 2015 treatment note, the examiner noted that interventional cardiology ruled out a PFO last year. At a June 2015 VA examination, the VA examiner diagnosed the Veteran with valvular heart disease, pericarditis, left ventricular hypertrophy, pulmonary insufficiency, TIA syndrome, and a PFO. The examiner noted that the PFO had an unknown original diagnosis. The Veteran stated that the heart condition has worsened since its onset due to several TIA syndrome symptoms, including weakness, numbness, and lightheadedness. He currently he experienced headaches, weakness, and chest pain; and he took medication for his heart conditions. The examiner noted that the Veteran has had several hospitalizations related to the TIA syndrome. The Veteran reported that he had to retire due to his heart condition because of the TIA syndrome. He stated that he can sometimes do light weights at the gym or walk, but he cannot run more than 2 miles without becoming short of breath. The examiner found that the TIA syndrome was a progression of the service-connected diagnosis of pericarditis with left ventricular hypertrophy and mild pulmonic insufficiency. The June 2015 VA examiner also stated that the pulmonary insufficiency, hypertension, and TIA syndrome symptoms are likely due to the long standing untreated PFO. However, the examiner gave no other rationale for this statement. Additionally, the Board notes that record indicates that the Veteran exhibited pulmonary insufficiency and hypertension long before he was thought to have a PFO. Also, as shown above, the Veteran's medical providers had determined that the Veteran did not have a PFO. Therefore, the June 2015 VA examiner's statement that the Veteran's pulmonary insufficiency and hypertension were due to the PFO is inconsistent with the objective evidence of record. In weighing credibility, the VA may consider inconsistent statements and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. 498 (1995). Therefore, because the June 2015 VA examiner's statements concerning the Veteran's PFO are not credible and lack rationale, they are not entitled to significant probative weight. In a November 2015 treatment note, the Veteran gave a history of chest pain and tightness periodically with exertion; and he described the pain as substernal without radiation, lasting several minutes and generally occurring several hours after a strenuous workout. He continued to complain of periodic arm and hand weakness with leg weakness and positional light-headedness. The Veteran reported that he had a TIA on March 26, 2014, and a TTE demonstrated a small interatrial shunt. He was referred to interventional cardiology to discuss a PFO closure, and they did another test that did not show a PFO. No further treatment was done. In an August 2016 treatment note, the examiner noted that a TTE had previously shown a possible small right to left interatrial shunt, but a TEE confirmed there was no PFO present. In a June 2019 VA Cardiology Note, the Veteran stated that his history included a PFO. In a February 2020 VA Cardiology Note, the Veteran reported a history of a PFO, but the examiner stated that the PFO has not been seen in the echocardiograms done at the VA. In an April 2020 Cardiology Telephone Encounter Note, the examiner noted that the Veteran reported a history of a PFO, but the PFO was not seen in VA echocardiograms. At an October 2019 VA examination, the VA examiner diagnosed the Veteran with cardiomyopathy. The Veteran reported that, in 2013, he underwent a study during which he was suspected to have a PFO. However, after extensive cardiac workup and repeated TEE, he was told there was no evidence of a PFO. He had since been diagnosed with hypertrophic non-obstructive cardiomyopathy. The VA examiner found that, based on extensive cardiac workup and multiple cardiologists assessments, the Veteran's diagnosis was hypertrophic nonobstructive cardiomyopathy, which is a progression of the service-connected condition previously rated as history of pericarditis with left ventricular hypertrophy and mild pulmonic insufficiency. In a related medical opinion, the October 2019 VA examiner was asked whether the Veteran's PFO was a separately diagnosed disability from the pericarditis with TIA syndrome. The examiner was also asked whether the PFO was at least as likely as not (50 percent or greater probability) proximately due to, a result of, or aggravated by the pericarditis with TIA syndrome. The October 2019 VA examiner stated that there is no evidence of a PFO, based on the Veteran's medical records and this examination. The VA examiner explained that, although initial testing suggested the presence of a PFO, the PFO diagnosis was later discarded after completed cardiac workup and repeated TTE. The VA examiner also noted that a recent echocardiogram with bubble test from October 2018 reported that the interatrial septum is intact with no evidence for an atrial septal defect, and the bubble test was negative. Based on extensive cardiac workup and multiple cardiologists assessments, the VA examiner determined that the Veteran's diagnosis is hypertrophic nonobstructive cardiomyopathy, which is a progression of the service connected condition previously rated as history of pericarditis with left ventricular hypertrophy and mild pulmonic insufficiency. No other evidence of record shows a causal relationship between the Veteran's claimed PFO and his active service. Based on the foregoing, the Board finds that the Veteran does not have a confirmed diagnosis of a PFO. The Board acknowledges that, in the September 2015 notice of disagreement, the Veteran asserted that his PFO was related to his service-connected history of pericarditis with TIA syndrome. However, as the Veteran has been shown to not have a current disability of a PFO, the Board cannot find secondary service connection for a PFO based on the history of pericarditis with TIA syndrome. 38 C.F.R. § 3.310(a). The Board has considered the Veteran's statements that he has a PFO that is caused by or related to his active service or his service-connected heart disability. However, the Veteran, as a lay person, does not have the requisite training and experience necessary to address such a complex medical matter as the presence or etiology of his claimed PFO. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The etiology of the condition at issue 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 v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Board finds that the Veteran's assertions as to his claimed PFO are not competent evidence and, consequently, are afforded no probative weight. Moreover, the Board finds the opinion of the October 2019 VA examiner to be the more probative evidence of record concerning whether the Veteran has a PFO that is related to his active service or to his service-connected heart disability. The VA examiner's rationale is logical and well-reasoned and based on consideration of the Veteran's claims file, reported history, service treatment records, medical records, and post-service history. Thus, the Board is satisfied that the October 2019 VA examiner's opinion is competent, credible, persuasive, and probative for deciding this appeal. Based on the above, the Board finds that the preponderance of the evidence is against a grant of service connection for PFO. In reaching the foregoing conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal; and his claim of service connection for a PFO must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dawn A. Leung, 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.