Citation Nr: 21031566 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-23 452 DATE: May 24, 2021 ORDER Entitlement to service connection for heart disease is denied. Entitlement to service connection for stroke with left-sided weakness, as secondary to heart disease, is denied. Entitlement to service connection for a seizure disorder, as secondary to stroke, is denied. Entitlement to service connection for a left visual impairment, as secondary to stroke, is denied. Entitlement to service connection for a left auditory impairment, as secondary to stroke, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's preexisting congenital atrial septal defect (ASD), was aggravated by his active service; a heart condition was not manifest in service or manifest to a compensable degree within one year of service discharge, and is not otherwise related to service. 2. The Veteran's stroke with left-sided weakness is not due to an in-service injury or disease or secondary to a service-connected disability. 3. The Veteran's seizure disorder is not due to an in-service injury or disease or secondary to a service-connected disability. 4. The Veteran's left visual impairment is not due to an in-service injury or disease or secondary to a service-connected disability. 5. The Veteran's left auditory impairment is not due to an in-service injury or disease or secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1113, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 3.307, 3.309. 2. The criteria for service connection for a stroke with left-sided weakness are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for service connection for a seizure disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for service connection for a left visual impairment are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 5. The criteria for service connection for a left auditory impairment are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1980 to October 1984. The matter comes before the Board of Veterans' Appeal (Board) on appeal of a February 2014 rating decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In May 2019, the Board remanded the issue on appeal to the AOJ, and upon substantial compliance with the Board remand directives, the AOJ has returned the appeal to the Board for appellate review. 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 elements required to establish service connection are: (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). Service connection for certain chronic diseases, including cardiovascular-renal disease or arteriosclerosis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307 (a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology, however, can be applied only in cases involving those diseases explicitly enumerated under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, presumptive service connection is not applicable. Although the Veteran asserted that heart disease was diagnosed within one year from the date of separation from service, the evidence does not support presumptive service connection for his heart condition as the earliest diagnosed condition was a heart murmur shown in May 1988. A veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence (obvious or manifest) establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). "Clear and unmistakable evidence" is an "onerous" evidentiary standard requiring that the conclusion be "undebatable." Cotant v. Principi, 17 Vet. App. 116 (2003) (citing Laposky v. Brown, 4 Vet. App. 331 (1993)). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that active service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Aggravation may not be conceded where the disability underwent no increase in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The term "disability" for VA compensation purposes refers to the functional impairment of earning capacity rather than the underlying cause of the impairment and it is noted that pain alone may be a functional impairment. See Saunders v. Wilkie, 887 F.3d 1356, 1364-68 (Fed. Cir. 2018). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation for VA compensation purposes. See 38 C.F.R. § 3.303 (c), 4.9; see also O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). When there is a congenital defect, the presumption of soundness is automatically rebutted, and the congenital defect is therefore considered to have preexisted service. Id. Congenital defects, however, can be subject to superimposed disease or injury and if, during an individual's military service, superimposed disease or injury does occur, service-connection may be warranted for the resultant disability. See VAOPGCPREC 82-90 (July 18, 1990). If the condition is found to be a congenital disease, and not a defect, the Veteran may be entitled to a presumption of soundness if the condition was not noted upon entry to service. O'Bryan, 771 F.3d 1376, 1380; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. 1. Entitlement to service connection for a heart condition The Veteran contends that his preexisting heart condition worsened during active duty service, which caused his heart disease that led to his stroke and to the claimed secondary conditions. The record on appeal indicates that the Veteran has diagnoses of arteriosclerotic heart disease; atrial septal defect; paroxysmal atrial fibrillation; hypertensive disorder; and history of stroke. See, e.g., October 2018 private medical record. The Veteran's service treatment records (STRs) are silent of complaints of or treatment for the heart or chest. Post-service, private treatment records note that the Veteran underwent a heart catherization surgery in October 1999 and an ASD repair surgery in January 2000. Days after the January 2000 ASD repair surgery, the Veteran had a stroke. In December 2009, a VA examiner found that the Veteran had a preexisting congenital heart disease with a secundum atrial septal defect prior to entering active duty service. The examiner opined that there was no likelihood that the condition permanently increased in severity beyond its natural progression during service or within the first post-service year. The VA examiner cited research on congenital heart disease that found affected patients naturally became progressively more limited due to their congenital defects as they aged. Further, atrial fibrillation and flutter can be part of the natural evolution of atrial septal defects. In October 2004, a private physician noted that the earliest treatment for the Veteran's heart murmur was in May 1988. Specifically, the May 1988 treatment record was associated with a heartbeat readout that the October 2004 physician identified as a heart murmur. In February 2010, a physician noted that the Veteran had ASD during active service and that exertional dyspnea, which the Veteran experienced during active service, was indicative of a congenital cardiac abnormality, notably ASD. A May 2017 image study of the heart showed some myocardial enhancement in proximal and mid-distal segments of the inferolateral wall which were suggestive of a previous myocardial infraction embolic involvement of PLSA and/or circumflex branches. There was no evidence of an ASD. During his September 2018 Board hearing, the Veteran noted that private treatment providers stated that his heart condition worsened during his military service. The Veteran stated that he was diagnosed with a heart condition in January 1985 at Montclair Hospital in Birmingham, Alabama, months after being discharged from active duty service and that he was told that he had had a mini-stroke at that time. He noted that imaging studies dated in 2001 showed evidence of an old stroke that likely occurred prior to his massive stroke in 2000 and which he asserted likely would have occurred during active duty service. In October 2018, a private physician noted that he first treated the Veteran for a large right hemispheric stroke that occurred several days after open heart surgery to repair a septal defect in January 2000. The stroke left the Veteran with a visual field deficit on his left side and left tactile weakness. The physician diagnosed the Veteran with status post right hemispheric stroke, secondary to septal defect and/or as a complication of open-heart surgery. In November 2018, the Veteran submitted an October 2001 private treatment record that found image study evidence of an old stroke. In June 2020, A VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner reviewed the Veteran's claims file and found that there was no objective evidence of heart disease during active service. The examiner noted that while the Veteran presented recent testimony that he had cardiac symptoms in service including in boot camp such as difficulties keeping up, leg cramping or Bell's Palsy, the records do not reflect any cardiac symptoms during service. Specifically, the Veteran indicated in 1983 and 1984 that he had no palpitations/pounding chest, heart trouble, or high or lower blood pressures. Further, he noted good health and no medications. The 1984 separation physical examination noted a normal heart. The Veteran was diagnosed with an atrial septal defect in January 2000 with subsequent repair the same month. Per medical literature, "atrial septal defect (ASD) is the most common congenital heart lesion in adults and is often asymptomatic until adulthood." ASDs result from lack of sufficient tissue to completely septate the atria and are classified according to their location in the atrial septum. The Veteran's prior cardiology reports were reviewed and noted that ASD was congenital and existed prior to service, of which medical literature cited also concurred that ASD can begin as early as the fifth week of gestation. In December 2020, a VA examiner opined it is less likely as not that the Veteran had a stroke while on active duty. The examiner explained that prior to the Veteran's acute stroke in 2000, he was without symptoms of any prior stroke. Although the Veteran asserted that his heart condition worsened on active duty, he was not treated for such during active service. His separation examination noted that he was in good health, not taking medication, and no significant medical history was noted. Further, while the January 2000 image study noted evidence of a previous stroke, it was not clear whether this previous stroke occurred during or proximate to the Veteran's period of active service. Notably, there is no evidence of the Veteran reporting clinical symptoms of a stroke during active service. Based on the above, the examiner opined that the Veteran's heart condition and stroke residuals were not aggravated beyond their natural progression by his period of active service, nor were the Veteran's heart condition or stroke residuals proximately due to, or the result of, an old stroke that occurred during active service. Where no preexisting condition is noted upon entry into service, such as in the instant case, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. The Board finds that VA has met its burden in this case and therefore the presumption of soundness has been rebutted in this case. In this regard, the VA examiners have clearly found (and the Veteran concurs) that the evidence indicates that the Veteran had ASD prior to service. As noted above, image studies have shown ASD and medical literature notes that it can develop in gestation and is often asymptomatic until adulthood. The Board finds this evidence highly probative in this case as the VA examiners clearly found based on medical knowledge, literature and experience that the Veteran's ASD clearly and unmistakable preexisted service. The Board also finds that there is clear and unmistakable evidence that the Veteran's ASD was not aggravated in service. In this regard, the Board notes that the Veteran was not seen in service for complaints that any health care professional has indicated are reflective of a heart of cardiac condition. Specifically, the Veteran indicated in 1983 and 1984 that had no palpitations/pounding chest, heart trouble, or high or lower blood pressures. Further, he noted good health and no medications. The 1984 separation physical noted a normal heart. The Veteran was first diagnosed with ASD in January 2000. Based on the foregoing, the Board concludes that, while the Veteran has a diagnosis of ASD, the Veteran's heart condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The December 2009 VA examiner found that the Veteran had a preexisting congenital heart disease with a secundum ASD prior to entering active duty service. The examiner opined that there was no likelihood that the condition permanently increased in severity beyond its natural progression during service or within the first post-service year. The VA examiner cited research on the Veteran's congenital heart disease that found affected patients naturally became progressively more limited due to their congenital defects as they aged. Further, the June 2020 VA examiner reviewed the Veteran's cardiology reports and noted that ASD was congenital and existed prior to service. She noted that medical literature indicates that ASD is the most common congenital heart lesion in adults and is often asymptomatic until adulthood. Because aggravation may not be conceded where the disability underwent no increase in severity during service, the Board finds that the Veteran's ASD was not aggravated by his active service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In this regard, the VA examiners were aware of the Veteran's medical history, provided fully articulated opinions, and also furnished reasoned analyses. The Board therefore attaches significant probative value to these opinions as they are well reasoned, detailed, consistent with other evidence of record, and include a review and consideration of the nature and history of the claimed disorder. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board notes further, that as to the other cardiac related diagnosis of record to include arteriosclerotic heart disease, the Board finds that the evidence of record does not show a heart condition had its onset in service, was manifest to a compensable degree within one year of service discharge, or is otherwise related to service. Although the Veteran has reported that he was told he had heart disease and a mini-stroke in 1985 and has pointed to a previous imaging study with evidence of an old stroke that he asserts likely occurred in service, there simply is no competent and credible contemporaneous evidence of such. The Veteran has not been shown to have the requisite experience or knowledge to link any reported symptoms in service to the onset or aggravation of a cardiac condition in service or in close proximity thereto. The December 2020 VA examiner clearly noted that the timing of the old changes of the brain shown on a January 2000 MRI (cerebral ischemia, cerebral infection, hemorrhage, traumatic brain injury, surgery or other insults) is unknown and notably the Veteran did not have stroke symptoms in service and was not diagnosed with a traumatic brain injury or have major surgery while on active duty. Therefore, whether or not the noted encephalomalacia started in service is also unknown and could only be determined by resorting to speculation. While the Veteran believes his ASD was aggravated by his service which caused a stroke while on active duty as an October 2001 image study noted evidence of an old stroke, the preponderance of the probative evidence weighs against that proposition. As noted by the VA examiners, there was no objective evidence of aggravation of the Veteran's ASD during active service. The Board acknowledges that lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). For the foregoing reasons, the Board finds that service connection for a heart disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 40, 53 (1990). 2. Entitlement to service connection for stroke with left-sided weakness, left visual impairment associated with stroke with left-sided weakness, a seizure disorder associated with stroke with left-sided weakness, and left auditory impairment associated with stroke with left-sided weakness The Veteran claims that his stroke with left-sided weakness is secondary to his heart disease. Also, the Veteran asserts that his left visual impairment, seizure disorder, and left auditory impairment are secondary to his stroke with left-sided weakness. The Veteran does not contend, and the record does not reflect, that the Veteran's stroke with left-sided weakness, left visual impairment, seizure disorder, and left auditory impairment had its onset in service, or that the disabilities are otherwise directly related to the Veteran's military service. Thus, the Board will only address the Veteran's theory of secondary service connection in this decision. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail under a theory of secondary service connection, there must be: (1) evidence of a current disorder; (2) evidence of a service-connected disability; and, (3) medical nexus evidence establishing a connection between the service-connected disability and the current disorder. Wallin v. West, 11 Vet. App. 509, 512 (1998). VA and private treatment records establish that the Veteran is currently diagnosed with a history of strokes with residual left sided weakness and numbness, seizure disorder, slight visual loss in the left eye, and impaired left sided hearing. This fulfills the first Wallin requirement necessary to establish secondary service connection. However, the Board has found that the Veteran's heart disability is not service connected. In fact, the Veteran is not service-connected for any disability. Therefore, the second Wallin requirement necessary to establish secondary service connection has not been met, and entitlement to service connection for stroke with left-sided weakness, left visual impairment, seizure disorder, and left auditory impairment is not warranted. Id. Based on the above, the Board finds that the preponderance of evidence is against the Veteran's claims for entitlement to service connection for stroke with left-sided weakness, left visual impairment, seizure disorder, and left auditory impairment. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Therefore, the Veteran's claims for entitlement to service connection for stroke with left-sided weakness, left visual impairment, seizure disorder, and left auditory impairment are denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.