Citation Nr: 21031174 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-06 879 DATE: May 20, 2021 ORDER Entitlement to service connection for heart disease is denied. Entitlement to service connection for hypertension is denied. REMANDED Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. There is no probative medical evidence indicating that the Veteran had heart disease that was incurred in or was related to service. 2. There is no probative medical evidence indicating that the Veteran had hypertension that was incurred in or was related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to October 1976. The Veteran died in January 2016, and his surviving spouse has been substituted as the appellant. This case comes to the Board of Veterans' Appeals (Board) from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office. The appellant attended a virtual Board hearing before the undersigned in April 2021. Heart Disease The Veteran requested service connection for a heart disorder. Generally, service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran's VA treatment records show that he did have a diagnosis of congestive heart failure, for which he took medication and received regular treatment and evaluations. There is not, however, any evidence that the Veteran's heart disease was incurred in service or was related to any event or injury in service. The Veteran's service treatment records do not show any complaints or treatment related to a heart disorder or heart disease. The Veteran did not provide any argument regarding why he believed service connection for heart disease was warranted, and there are no medical opinions or findings in the record indicating that heart disease is related to service. The appellant testified in April 2021 that the Veteran had never said to her that he believed his heart disease was related to service. She stated that the Veteran died of a heart attack. The Board notes that veterans who served in the Republic of Vietnam during a certain period are presumed to have been exposed to herbicide agents during service, and the law establishes a presumption of entitlement to service connection for ischemic heart disease for veterans who have such service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In this case, while the Veteran had service during the Vietnam era, there is no indication that the Veteran had service in the Republic of Vietnam, and he did not assert that he did. On a July 2001 application for benefits, the Veteran marked that he did not service in Vietnam. The Veteran did not allege exposure to herbicide agents in any other capacity, and there is therefore no basis to award service connection of based on this presumption. The Board acknowledges that the Veteran was not afforded a VA examination for heart disease during his lifetime, and a VA medical opinion has not been requested. VA is obliged to provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service, or manifested during an applicable presumptive period; and (3) an indication that the disability or symptoms may be associated with a veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, while the Veteran did have a heart disorder, there is no evidence indicating that any event, injury, or disease occurred in service which could have caused his heart disorder, nor did he or the appellant assert that such an event occurred. In the absence of any such evidence, the Board does not find that the duty to obtain a medical opinion has been triggered. The Board finds that there is no evidence indicating that any event or injury occurred in the Veteran's service which was possibly related to his later diagnosis of congestive heart failure or other heart disease, and there is no probative evidence which weighs in favor of the claim. This evidentiary deficiency concerning the nexus element is fatal to the claim. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board therefore finds that the evidence demonstrates that the Veteran's heart disease was not incurred in or related to service, and there is no other evidence indicating that service connection is warranted on a presumptive basis or any other basis. The claim for service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran also submitted a claim for service connection for hypertension. The Veteran's VA treatment records show that he did have a history of hypertension, which was controlled with medication. While the Veteran had a diagnosis of hypertension, there is unfortunately no evidence indicating that the Veteran's hypertension was related to his service. At the April 2021 Board hearing, the appellant stated that the Veteran had not ever indicated to her that his hypertension was related to service, and her representative acknowledged that there was no evidence relating it to service. The Veteran also did not provide any other evidence or argument regarding why he believed service connection was warranted for hypertension. The appellant has not provided any other information or evidence indicating that his hypertension began in service, and there are no medical opinions or findings in the record indicating that hypertension is related to service. The Veteran's service treatment records do not show any findings of hypertension. His separation examination found blood pressure of 110/50. The Board again acknowledges that the Veteran was not afforded a VA examination for hypertension, and a VA medical opinion has not been requested. In this case, while the Veteran did have a diagnosis of hypertension, there is no evidence indicating that any event, injury, or disease occurred in service which could have caused hypertension, and the Board does not find that the duty to obtain a medical opinion has been triggered. McLendon, 20 Vet. App. at 81. The Board finds that there is no evidence indicating that any event occurred in the Veteran's service which was possibly related to his hypertension, and there is no probative evidence which weighs in favor of the claim. In the absence of such evidence, the claim cannot be granted. See Watson, 4 Vet. App. 309, 314. The Board therefore finds that the evidence demonstrates that the Veteran's hypertension was not incurred in or related to service, and there is no other evidence indicating that service connection is warranted. The claim is denied. The Board has again considered the doctrine of reasonable doubt, but the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49. REASONS FOR REMAND Lumbar Spine Disability The Veteran initially submitted a claim for service connection for a back disorder in July 2001. The claim was denied in a March 2002 rating decision. The Veteran submitted a Notice of Disagreement with this decision in January 2003, and a Statement of the Case was issued in April 2003. The Veteran did not appeal this decision, and the March 2002 rating decision is final. A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The Veteran submitted a new claim for service connection in December 2012. He wrote on his claim that he was hospitalized for three days at Fort Benning, Georgia, after jumping from the training tower, and asked that these medical records be included with the claim. At the April 2021 Board hearing, the appellant testified that her husband had told her that when he jumped out of a plane in service, he injured his back. Her representative noted that the Veteran had written in December 2012 that he was hospitalized at Fort Benning, and that these records needed to be found. While no new and material evidence has yet been submitted to reopen this claim, the Board finds that VA does still have a duty to assist the appellant by obtaining all relevant service records. See 38 C.F.R. § 3.159(c). The Board acknowledges that hospital clinical records may be kept separately from service treatment records, and an attempt should be made to obtain these records. The Agency of Original Jurisdiction should first attempt to determine when the Veteran received this treatment, both by asking the appellant to provide the dates of this treatment, and by obtaining his personnel records and reviewing the dates he was stationed at Fort Benning. The Board also notes that if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. See 38 C.F.R. § 3.156(c)(1). The matters are REMANDED for the following action: 1. Ask the appellant and her representative to provide the dates of the Veteran's service at Fort Benning and the dates that he was treated at the Fort Benning hospital. 2. Obtain the Veteran's complete service personnel records. 3. Based on the information received from the appellant and contained in the service personnel and treatment records, determine the approximate dates of the Veteran's reported hospitalization for an injury following a parachute jump at Fort Benning, and attempt to acquire the clinical treatment records. If the records cannot be obtained, all actions taken to obtain these records must be documented, and a formal finding made regarding the unavailability of these records. 4. If clinical records are obtained which verify the Veteran's hospitalization at Fort Benning for a back injury following a parachute jump, consider whether the Veteran's initial 2001 claim can be reconsidered, and perform all appropriate development for this claim. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary E. Rude, 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.