Citation Nr: 21032394 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-28 496 DATE: May 26, 2021 ORDER Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for hypertension, to include as secondary to hypogonadism, is denied. FINDINGS OF FACT 1. The probative evidence of record indicates that the Veteran has not manifested a respiratory disability during or near the period on appeal. 2. A preponderance of the evidence is against finding that the Veteran's diagnosed hypertension was caused or aggravated by his service-connected hypogonadism or is otherwise due to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a respiratory disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army National Guard from March 1984 to July 1984, as well as the Army from August 1995 to December 1995 and January 2009 to January 2010, to include service in the Southwest Asia theater of operations during the last period. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2014 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a November 2019 video hearing, a transcript of which is attached to the record. In an April 2020 decision, the Board granted service connection for a multi-symptom illness manifested by joint pain, muscle aches, chronic fatigue, headaches, neurological symptoms, and primary hypogonadism, and remanded the claims listed above to the AOJ for further development. Service Connection The Veteran asserts entitlement to service connection for hypertension and a respiratory disorder. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Certain chronic diseases, such as hypertension, may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation from service (one year for hypertension). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 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. See 38 C.F.R. § 3.310; Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159(a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 1. Entitlement to service connection for a respiratory disorder. The Veteran's September 2013 claim stated he wished to file a claim for the "respiratory system" as due to Gulf War undiagnosed illness. The Veteran's service treatment records are silent for complaints of or treatment for respiratory issues, aside from a November 2009 report to sick call for cold and flu symptoms. The treating clinician diagnosed the Veteran with a cold and confined him to quarters for 24 hours. There is no record of a followup visit. May 2010 private treatment records indicate the Veteran denied recurrent sinusitis. October 2010 private treatment records show the Veteran complained of sinusitis symptoms in the forehead, nose, and sinuses. Upon examination, the treating clinician noted clear lungs without labored breathing and diagnosed acute sinusitis and "asthmatic bronchial asthma." The treating clinician's notes do not contain an explanation for the diagnosis of asthma. December 2010 and February 2011 private treatment records are silent for complaints of or treatment for respiratory issues, and there is no record of the Veteran being prescribed treatment for asthma. The Veteran was afforded a June 2014 comprehensive VA examination due to his service in the Southwest Asia theater of operations. With regard to respiratory issues, the Veteran reported his forward operating base was near a burn pit and stated he was "exposed to burn pit hazards." He reported seeing a doctor upon returning to the U.S. in January 2010 and undergoing a chest x-ray. The Veteran indicated he was told to follow up with private care for any recurrent respiratory symptoms but stated he had experienced no such symptoms since returning to the U.S. The examiner noted that June 2000 and January 2010 chest x-rays were negative. In January 2020 correspondence, a private physician listed the Veteran's recurrent symptoms and opined they were as likely as not due to his active service. The Board observes that respiratory issues were not listed in this letter, nor were they discussed at the November 2019 hearing, in which the Veteran indicated he was in perfect health before his 2009 to 2010 deployment to Southwest Asia. An April 2020 Board decision granted entitlement to service connection for an undiagnosed multi-symptom illness and remanded the issue of a respiratory disorder to the AOJ for an additional VA examination, which occurred in November 2020. The examiner noted the past diagnosis of asthma, and the Veteran reported no exacerbations or treatment in the past year. After reviewing the Veteran's service, VA and private treatment records, the examiner noted that the only mention of asthma was the October 2010 diagnosis concurrent with a diagnosis of acute sinusitis. The examiner further observed that the Veteran's medical history was silent for complaints of wheezing, contained only note of upper-respiratory symptoms, and that the October 2010 examination indicated no symptoms of asthma. Finally, the examiner noted that after the asthma diagnosis, the Veteran was not prescribed a breathing treatment or oral inhalers, to include a "mainstay first line of asthma treatment albuterol inhaler." Compared with 10 prior and four subsequent years of treatment records that were silent for complaints of asthma symptoms, as well as an absence of symptoms upon examination, the VA examiner concluded the October 2010 asthma diagnosis was made in error. After review of the record, the Board finds that service connection for a respiratory disability is not warranted, as the evidence indicates the Veteran does not manifest a current respiratory disability. The Board observes the Veteran's in and post-service respiratory illnesses were both acute in nature, as evidenced by the lack of followup visits, continuing respiratory complaints, or additional treatment. The only medical reference to a chronic respiratory disorder is the Veteran's October 2010 diagnosis of "asthmatic bronchial asthma." However, as noted by the November 2020 VA examiner, this diagnosis appears to be made in error, as it is contradicted by both the concurrent examination results and the medical record as a whole, to include negative chest x-rays. While the Veteran filed a claim for the "respiratory system," a review of the record reveals he denied complaints of or treatment for recurrent respiratory symptoms at both VA examinations as well as all private and VA treatment appointments, aside from the episode of acute sinusitis noted above, which occurred three years before the Veteran's claim for benefits. The United States Court of Appeals for Veterans Claims has held that the presence of a disability at or near any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). However, Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1131. In order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (2001). Hence where, as here, the lay and probative medical evidence does not support the finding of a respiratory disability upon which to predicate a grant of service connection, there can be no valid claim for this benefit. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). The Board finds the November 2020 examiner's opinion regarding an erroneous asthma diagnosis highly probative, as it is based on a thorough review of the Veteran's medical history, incorporates his lay statements denying respiratory symptoms, and provides sound reasoning for the conclusion reached. As such, the October 2010 diagnosis of asthma is given little probative weight, and the Veteran is not found to have manifested a respiratory disability stemming from his claimed environmental exposures during service. The Board concludes that the overall medical record, to include the Veteran's own statements, and the probative November 2020 opinion are controlling in this case. While the Veteran's representative has requested a grant of service connection for asthma with a noncompensable rating in January 2021 correspondence, in the absence of evidence of a current disability, there can be no grant of service connection under the law. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board finds that the diagnosis of asthma was a misdiagnosis based on the VA medical opinion. As there is no probative evidence of the presence of a respiratory disability at or near the period on appeal, the benefit of the doubt rule is not for application, and claim must be denied. See U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. 2. Entitlement to service connection for hypertension The Veteran asserts entitlement to service connection for hypertension, to include as secondary to "reproductive health issues," in this case his service-connected hypogonadism. January 1993 service treatment records indicate the Veteran was counseled about excessive alcohol use and high blood pressure. The remainder of his service treatment records are silent for complaints of or treatment for hypertension, and his blood pressure readings throughout service are unremarkable. Private treatment records indicate the Veteran was diagnosed with "benign hypertension" since at least February 2011 and was prescribed lisinopril, which has been largely successful in controlling his blood pressure. The rest of his private treatment blood pressure readings are below the VA standard for a diagnosis of hypertension. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (hypertension must be confirmed by readings taken two or more times on at least three different days and indicate a diastolic blood pressure predominantly 90 mm or greater or systolic blood pressure predominantly 160mm or greater). The Veteran was afforded a comprehensive VA examination in June 2014. The examiner noted a diagnosis of essential hypertension, confirmed on examination with three readings, and noted most hypertension is a result of increased neural or hormonal activity, which is very common and occurs in 30 percent of adults over the age of 18. The examiner opined that there was no evidence of a nexus between the Veteran's Southwest Asia service and his diagnosed hypertension. The April 2020 Board decision granted service connection for hypogonadism and remanded the issue of hypertension for an additional VA examination, as well as an opinion on whether the Veteran's hypertension was caused or aggravated by his service-connected hypogonadism, to include prescribed medication. The Veteran was afforded an additional VA examination in November 2020. The examiner noted diagnoses of both essential hypertension and hypogonadism with daily testosterone gel treatment but opined that the Veteran's hypertension was less likely than not caused or aggravated by his hypogonadism or medication prescribed to treat the condition. The examiner observed hypertension is by definition of unknown etiology, is very common, and occurs in 30 percent of adults over 18. Upon examination, the examiner noted the Veteran exhibited several risk factors for hypertension, to include advancing age, obesity, inactivity, stress, and being African American, which medical literature indicates is associated with increased severity and earlier occurrence of hypertension. Finally, the examiner observed that the Veteran's service treatment records were silent for any diagnoses of hypertension and cited medical literature noting that of the risk factors most associated with hypertension (age, obesity, family history, race, reduced neophron number, high-sodium diet, excessive alcohol consumption, lack of physical activity), none applied to the circumstances of the Veteran's active service. In January 2021 correspondence, the Veteran's representative argued that the Veteran's hypertension should be granted service connection as secondary to his erectile dysfunction, which he stated the Veteran did not disclose at the examination. The representative claimed that the Veteran's hypertension was due to his erectile dysfunction, which was caused by his hypogonadism, stating "testosterone therapy has been associated with hypertension" and that according to the Mayo Clinic, erectile dysfunction is related to hypogonadism. After review of the evidence of record, the Board finds that service connection for hypertension is not warranted. The Veteran's service treatment records are silent for complaints of or treatment for hypertension, and while he was diagnosed with "benign hypertension" within one year of separation from service, his blood pressure readings during this period do not constitute hypertension for VA purposes. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. Therefore, as the Veteran did not manifest hypertension within one year of separation or show a continuity of diastolic or systolic blood pressure readings over 90mm or 160mm, respectively, he is not entitled to presumptive service connection for hypertension as a chronic disease. 38 C.F.R. § 3.309. The Board notes there is also no evidence of record indicating a direct nexus between the Veteran's diagnosed hypertension and his active service. Similarly, the Board finds that a preponderance of the evidence is against finding that the Veteran's hypertension was caused or aggravated by his service-connected hypogonadism, to include the medication prescribed for its treatment. The November 2020 VA examiner opined that the Veteran's hypertension was not due to his service-connected reproductive issue, hypogonadism, or the prescribed topical steroid gel applied for treatment. The Board finds this opinion highly probative as it includes a review of the Veteran's medical history, cites to relevant medical literature, and provides a supporting rationale that notes the Veteran exhibits several of the known primary causes of hypertension. There is no medical opinion to the contrary. The only evidence in support of the Veteran's assertion is his claim that his hypertension is secondary to "reproductive health issues," as well as his representative's claim that testosterone therapy is related to hypertension, and the Veteran's hypertension is caused by his erectile dysfunction which in turn is caused by his service-connected hypogonadism. Neither the Veteran nor his representative have submitted medical treatise or opinion evidence in support of this claim. Although the representative stated that according to the Mayo Clinic, erectile dysfunction is related to hypogonadism, he did not include medical literature supporting this claim and the Board notes the issue of entitlement to service connection for erectile dysfunction is not currently on appeal. The Board observes that the record is silent for complaints of or treatment for erectile dysfunction, and since this disorder is not service-connected, it cannot serve as a basis for secondary service connection. The Board further notes that the Veteran is not a medical expert, and therefore is not competent to opine as to the etiology of his diagnosed hypertension, as the issue is medically complex and requires medical training and knowledges of the internal workings of the human body. See Kahana v. Shinseki, 24. Vet. App. 428 (2011). Similarly, it is not the place of the Board or the Veteran's representative to substitute their own inadequate lay knowledge for that of the Veteran. See Kahana (Lance, J. concurring). Therefore, the Board awards these assertions little probative weight. In sum, the most probative evidence of record is against finding that the Veteran's hypertension is related to his active service or his service-connected hypogonadism. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claims, that doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.