Citation Nr: 21039824 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 17-29 370 DATE: July 1, 2021 ORDER Entitlement to service connection for a heart disability (claimed as enlarged heart), to include as secondary to hypertension, is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for the residuals of a cerebrovascular accident (CVA), to include as secondary to hypertension, is denied. FINDINGS OF FACT 1. The probative medical evidence of record does not show that the Veteran has a diagnosed heart disability. 2. The probative medical evidence of record does not show that the Veteran's hypertension was caused by or incurred in military service, but rather developed many years after service independently. 3. The probative medical evidence of record does not show that the Veteran's CVA was caused by or incurred in military service, but rather developed many years after service independently. CONCLUSIONS OF LAW 1. A heart disability was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). 2. Hypertension was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 3. A CVA was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1972 to May 1974, March 1976 to March 1980, and February 1981 to February 1984. In May 2021, the Veteran appeared and testified at a video conference hearing before the undersigned Veterans Law Judge. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be warranted 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). 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. 38 C.F.R. § 3.303 (a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may 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). If a condition noted in service is not shown to be chronic, then a showing of continuity of symptomatology after service will be required to establish service connection. 38 C.F.R. § 3.303 (b). However, the theory of continuity of symptomatology to establish service connection, can be used only in cases involving those disorders explicitly recognized as chronic under 38 C.F.R. § 3.309 (a)). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) In each case where a Veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such service as shown by the service record, the official history of each organization in which the Veteran served, his or her treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154 (a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Heart The Veteran contends that he currently suffers from a heart disability. In this regard, the Veteran has indicated that he suffers from an enlarged heart attributed to his hypertension. A review of the Veteran's service treatment records shows that in February1982, he was found to have a heart murmur. However, no diagnosis of any heart disability was made based upon this sound and imaging revealed normal chest findings. A review of the Veteran's post-service outpatient treatment records shows that the Veteran was found to have an enlarged heart, but still within normal limits, at the time of his CVA in December 2009. No diagnosis was associated with this finding. The Veteran was provided with a VA examination in November 2012. At the examination, the examiner determined that the Veteran did not have a currently diagnosed heart disability. The examiner noted that the heart murmur seen in service was merely an acute symptom that resolved without any residual disability. Further, the finding of the enlarged heart was within normal limits and, therefore, not a symptom of a disability. Current findings showed the Veteran's heart size to be normal. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability, in this matter a diagnosis of a heart disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement in a claim of service connection of current disability "is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim." See McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, the totality of the competent evidence does not reflect that the Veteran has or has had a diagnosis of a heart disability during the relevant period on appeal. Rather, the Veteran has shown normal heart findings throughout the appeal period. A review of current medical evidence since the filing of the Veteran's claims does not show any relevant current diagnosis for any of the aforementioned claimed disability. Last, the Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr v. Nicholson, 21 Vet. App. 303, 308-310 (2007). However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general and that he is merely speculating as to whether he has a current diagnosis of a heart disability. In this regard, he is not competent to diagnose such disability, as it requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he has a current diagnosis of a heart disability are lacking in probative value. Therefore, the most probative evidence of record reflects that the Veteran lacks a diagnosis of a disability manifested by a heart disorder during the appeal period. Absent the required diagnosis of the claimed disability at any time during the appeal period, there is no current disability to attribute to the Veteran's military service. Brammer, 3 Vet. App. at 223. For the reasons provided above, the preponderance of evidence is against the Veteran's claim. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulation. Gilbert, 1 Vet. App. at 49; 38 C.F.R. § 3.102. 2. Hypertension The Veteran claims that he suffers from hypertension that is the result of military service. In this regard, the Veteran has testified at the May 2021 Board hearing that he began experiencing high blood pressure during military service and that he was diagnosed by a private provider at that time. However, when he was further questioned as to general dates of when the diagnosis was provided, the Veteran indicated a timeframe of 1987 to 1989, after he had left military service. The Veteran further indicated that he had been taking medication for this condition since that time until present. The Veteran stated that he continued with his private provider until 2009 when he transferred to VA care. A review of the Veteran's service treatment records shows several instances of high blood pressure readings. In particular, in February 1982, it appears that the possibility of hypertension was considered, but ruled out. There were no other records showing any diagnoses of hypertension during service or within one year post service. A review of the Veteran's post-service outpatient treatment records appears to show that the Veteran was first diagnosed with hypertension in late 2009, several months before his December 2009 CVA, and that he was started on medication at that time with poor compliance. There were no indications of any longstanding diagnoses or treatment of hypertension prior to that time as would have been expected had the Veteran transferred care for a chronic health condition. The Veteran was provided with a VA examination in November 2012. A diagnosis of hypertension was confirmed. The examiner also reviewed the service treatment records, noting the instances of high blood pressure. The examiner opined that the Veteran's hypertension was less likely than not caused by or incurred in military service. In support, it was provided that the Veteran's high blood pressure was investigated during service, but was not found to be consistent with hypertension. The earliest diagnosis of hypertension did not come until many years after leaving military service in 2009. The Veteran was provided with an additional VA examination in June 2013. The examiner confirmed the Veteran's diagnosis of hypertension and reviewed the Veteran's service treatment records notations. The examiner declined to provide an opinion, indicating that the service treatment records notations did not appear to be made at the time of treatment and were perhaps added much later by someone else after military service. It was recommended that the records be reviewed to confirm their authenticity. An addendum opinion to the June 2013 VA examination was provided in July 2013. Upon reviewing the service treatment records, the examiner found that records were consistent with recordings of high blood pressure in acute instances, but that this did not meet the threshold requirements for a medical diagnosis of hypertension. Therefore, it was found less likely than not that the Veteran's current hypertension was related to the in-service notations. Here, the medical evidence of record has not shown any probative opinions that the Veteran's hypertension is the result of military service, to include any in-service notations of high blood pressure. Rather, the probative medical evidence of record, to specifically include the VA examination opinions, found that the Veteran's hypertension was not associated with military service to specifically include consideration of the aforementioned notations. The passage of so many years from military service to actual diagnosis in 2009 also supported these opinions. These opinions were based on an accurate history, and explained the reasons for the conclusions with reference to the facts of the case. Taken together, the Board finds the opinions probative. Additionally, in regard to presumptive service connection, this is not for application as there is no medical evidence showing a diagnosis to a compensable level within one year of leaving military service. Rather, the earliest confirmed diagnosis of hypertension is in 2009. Last, the Board notes that the Veteran is competent to testify as to a condition within his knowledge and personal observation. Barr, 21 Vet. App. at 308-310. However, it is clear, based on a detailed review of the statements overall, that the Veteran has no actual specialized knowledge of medicine in general and that he is merely speculating as to whether he had an earlier diagnosis of his hypertension during military service. In this regard, he is not competent to diagnose such disability, as it requires specialized medical knowledge and specific testing. See 38 C.F.R. § 3.159 (stating that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). As such, the Veteran's statements to the effect that he was diagnosed with hypertension during military service are lacking in probative value. Additionally, as to the Veteran's lay statements regarding being diagnosed in military service by a private provider and treated with medication from that time until he transferred into the VA system in 2009, the Board finds that the Veteran's statements are not credible. For instance, the Veteran appeared to contradict himself at the May 2021 Board hearing when he indicated that he was actually first treated for hypertension several years after leaving military service. Further impugning his credibility is the November 2012 VA examination in which the Veteran explicitly told the examiner that he was not treated with medication until 2009. In addition, while the Veteran claims that he had visited a private provider for treatment of his hypertension since leaving military service, a review of the Veteran's post-service treatment records, which date from 2009 and show no reference to any prior treatment. Accordingly, the Board also finds that these statements of ongoing treatment since service are not credible. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for hypertension and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107 (b) (2019). Thus, the claim must be denied. 3. CVA The Veteran contends that he suffered a CVA that is the result of military service. In this regard, the Veteran has testified at his May 2021 Board hearing that he attributes this condition solely to his hypertension and not to any event, injury, or disease in military service. A review of the Veteran's service treatment records reveals no discussion of treatment or diagnoses of any circulatory/vascular disorders of the brain, to include CVA. A review of the Veteran's outpatient treatment records post-service show that the Veteran sustained a CVA in December 2009. It was indicated that the Veteran suffered an ischemic type stroke. There was no discussion relating this to military service or hypertension. The Veteran was provided with a VA examination in July 2011. The examiner confirmed that the Veteran had suffered a CVA in 2009. It was opined that it was less likely than not that this was the result of military service or hypertension. The examiner provided that established medical knowledge shows that an ischemic type CVA, as the Veteran had, it not the result of hypertension and develops independently. Such findings were further confirmed in the November 2012 VA examination. Here, the medical evidence of record has not shown any probative opinions that the Veteran's CVA is the result of military service. Rather, the probative medical evidence of record, to specifically include the VA examination opinions, found that the Veteran's CVA was an independent event unrelated to service or hypertension. These opinions were based on an accurate history, and explained the reasons for the conclusions with reference to the facts of the case. Taken together, the Board finds the opinions probative. Because the Veteran has not even alleged direct service connection and the condition upon which he has asserted entitlement to secondary service connection (hypertension) is not even service-connected as discussed above, the Board finds that there is no basis left upon which to grant service connection for a CVA, notwithstanding the aforementioned VA examination opinions. For the foregoing reasons and bases, the Board concludes that the preponderance of the evidence is against the Veteran's claim of service connection for CVA and the benefit-of-the doubt standard of proof does not apply. 38 U.S.C. § 5107 (b) (2019). Thus, the claim must be denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.