Citation Nr: 21041703 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 13-25 069A DATE: July 9, 2021 ORDER Service connection for a heart disability is denied. Service connection for sudden death syndrome, to include on a secondary basis, is denied. Service connection for obstructive sleep apnea, to include on a secondary basis, is denied. Service connection for memory loss, to include on a secondary basis, is denied. Service connection for vertigo, to include on a secondary basis, is denied. REMANDED Entitlement to service connection for a right shoulder and cervical spine disability is remanded. Entitlement to service connection for a psychiatric disability, to include on a secondary basis, is remanded. FINDINGS OF FACT 1. A heart disability was not manifest during active service or within one year of service, nor is it etiologically related to service, including as a result of service in Southwest Asia. 2. Sudden death syndrome was not manifest during active service or within one year of service, nor is it etiologically related to service, including as a result of service in Southwest Asia, or secondary to service-connected disability. 3. Obstructive sleep apnea was not manifest during active service, nor is it etiologically related to service, including as a result of service in Southwest Asia, or secondary to service-connected disability. 4. Memory loss was not manifest during active service, nor is it etiologically related to service, including as a result of service in Southwest Asia, or secondary to service-connected disability. 5. Vertigo was not manifest during active service, nor is it etiologically related to service, including as a result of service in Southwest Asia, or secondary to service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability, including as due to an undiagnosed illness, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317. 2. The criteria for service connection for sudden death syndrome, including as due to an undiagnosed illness, or on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. 3. The criteria for service connection for obstructive sleep apnea, including as due to an undiagnosed illness, or on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310, 3.317. 4. The criteria for service connection for memory loss, including as due to an undiagnosed illness, or on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. 5. The criteria for service connection for vertigo, including as due to an undiagnosed illness, or on a secondary basis, have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1983 to December 1993 with service in Southwest Asia. In May 2017 a videoconference hearing was held before the undersigned. These matters were before then remanded by Board in August 2017 and February 2021 for additional development. The additional issue of entitlement to service connection for a skin disability was also remanded. A March 2021 rating decision granted service connection for this disability. As this claim has been granted in full, it is no longer before the Board for appellate consideration. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection may be granted for any disease initially 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). Certain chronic diseases, such as cardiovascular-renal disease, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). When aggravation of a nonservice-connected condition is proximately due to or a result of a service-connected disability a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Service connection may also be awarded on a presumptive basis to a Persian Gulf veteran who (1) exhibits objective indications; (2) of a chronic disability such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) which became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021; and (4) such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. Gutierrez v. Principi, 19 Vet. App. 1, 7 (2004); 38 U.S.C. § 1117; 38 C.F.R. § 3.317. Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. Id. Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving the skin, headaches, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b). If signs or symptoms have been attributed to a known clinical diagnosis, service connection may not be provided under the specific provisions pertaining to Persian Gulf veterans. See VAOPGCPREC 8-98 (Aug. 3, 1998). "The very essence of an undiagnosed illness is that there is no diagnosis." Stankevich v. Nicholson, 19 Vet. App. 470, 472 (2006); see also Gutierrez v. Principi, 19 Vet. App. 1, 10 (2004) (a Persian Gulf War veteran's symptoms "cannot be related to any known clinical diagnosis for compensation to be awarded under section 1117"). Finally, in a claim for service connection, the ultimate credibility or weight to be accorded evidence must be determined as a question of fact. The Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim; the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for a Heart Disability The Veteran asserts that he has a heart disability as a result of his service in Southwest Asia. See April 2017 VA Form 9, substantive appeal. Service personnel records show the Veteran served in Southwest Asia from December 1990 to May 1991. Service treatment records (STRs) are silent for diagnosis or treatment for a heart disability. Following service, private outpatient treatment records dated from 2003 to 2010 note the Veteran's complaints of chest pain and history of myocardial infarction (MI) in 2003. Thereafter, he was diagnosed with ventricular tachycardia and atrial flutter. A cardiac pacemaker was implanted in 2009. In a June 2010 VA Form 21-526, the Veteran reported that his heart problems began in 2003. The Veteran underwent a VA examination in January 2011; the diagnosis was old myocardial infarction with ischemic cardiomyopathy. The examiner opined that the Veteran's heart disability was not caused by or due to a specific exposure event during his service in Southwest Asia. For rationale, the examiner stated the Veteran's "cardiac status [was] related to a known cause for his MI and ischemic cardiomyopathy which [was] that of arteriosclerotic heart disease." The examiner also explained that arteriosclerotic heart disease was not known to be caused by environmental exposures. In a December 2016 opinion, the Veteran's private physician, Dr. R, opined that the Veteran's myocardial infarction with congestive heart failure was at least as likely as not the result of his military service. No rationale for the opinion was provided. In May 2017, the Veteran testified that he had been receiving cardiac care since his heart attack. He stated that prior to the heart attack, he experienced chest tightness and numb arms, but did not pay attention to these. The Veteran's private cardiologist has provided opinions addressing a direct relationship between the Veteran's conditions and his service. See July 2017 letter (stating e.g. "stress can be a contributing factor for coronary artery disease;" "[Scientists have] noticed a relationship between [coronary artery disease] and stress in a person's life - which [the Veteran] may have been exposed"). A November 2019 VA Medical Opinion DBQ (disability benefits questionnaire) shows that the examiner examined the Veteran, reviewed the claims file, and opined his heart disability was less likely than not incurred in or caused by service. For rationale, the examiner noted the negative STRs, and that the first documentation of heart disability was in 2001, as reported by the Veteran, and after 2001, as noted in the treatment records. A February 2021 VA Medical Opinion DBQ shows that the examiner examined the Veteran, reviewed the claims file, and opined his heart disability was less likely than not incurred in or caused by service. The examiner noted the negative STRs, and the first documentation of heart disability in 2003. The examiner also stated that stress could be one of the risk factors for heart disabilities; however, it was extremely unlikely that any claimed stress in service, which ended in 1993, would cause or aggravate his heart disability several years later. Based upon the evidence of record, the Board finds that a heart disability was not manifest during active service or within one year of service, and that the evidence does not support a finding that that this disability is etiologically related to service, including as a result of the Veteran's service in Southwest Asia. As to undiagnosed illness, there is no medical evidence of signs or symptoms involving the cardiovascular system other than the diagnoses noted above. The Veteran's complaints have been linked to specific diagnoses, as noted by the VA examiners. There is no evidence to the contrary. As to direct service connection, the Board finds that the most probative evidence of record supports a finding that current heart disability is not related to service. See 38 C.F.R. § 3.303. The Veteran's STRs are silent for any complaints, findings, treatment, or diagnosis related to heart disability, which supports an inference that emphysema was not present at that time. This finding is also supported by the VA examiners who reviewed the Veteran's service records and found that there was no evidence of heart disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that the passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection). As noted above, no complaints or findings related to a heart disability were noted until 2001 (by one of the Veteran's accounts), about eight years after service. Moreover, the 2021 VA medical opinion is persuasive and based upon adequate rationale. The examiner specifically found that there was no evidence the Veteran's emphysema had its onset in service or was proximately due to service, to include service in Southwest Asia, or any stress from service. The examiner reviewed the evidence of record and adequately considered the credible lay statements and reported symptom manifestation history of record. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Board affords less weight to the 2016 and 2017 private opinions. The 2016 opinion includes no rationale. The 2017 opinion is speculative, see Obert v. Brown, 5 Vet. App. 30, 33 (1993), and does not address the onset of disability many years after service. The Board recognizes and appreciates the lay evidence offered by the Veteran regarding the observable symptoms he has displayed over the years. He is competent to provide evidence of his objective symptoms. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, a medically competent diagnosis for the claimed disability and initial onset dates for this diagnosis are conclusions that must be rendered by a medical professional that has the requisite training and expertise to deliver a competent deduction. See Jandreau v. Nicholson, 492 F.3d 1372, 1733 n.4 (Fed. Cir. 2007). Even if the Veteran were competent to make such nexus opinions, they are outweighed by the VA medical examiners' opinions, which were based not only upon review of the claims file and medical expertise, but also on examination of the Veteran. 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, supra. As such, the claim is denied. Service Connection for Sudden Death Syndrome, Obstructive Sleep Apnea, Vertigo, and Memory Loss The Veteran asserts that he has sudden death syndrome, obstructive sleep apnea, vertigo, and memory loss as a result of his service in Southwest Asia. See July 2010 VA Form 21-4138. Alternatively, he maintains that these disabilities are secondary to his heart disability. See May 2017 hearing transcript. The medical record shows current diagnoses of sudden cardiac death, obstructive sleep apnea and cognitive memory loss due to hypoxia. The medical records also show the Veteran's ongoing complaints of dizziness. However, the preponderance of the evidence is against the award of service connection for these disabilities. The Veteran's STRs are silent for any complaints or findings related to sudden cardiac death, sleep apnea, vertigo, or memory loss. Following service, in 2003, the Veteran was diagnosed with sudden cardiac death; he underwent life support measures and recovered. In a November 2019 VA opinion, the examiner stated that this disability was not present in or related to service. In a February 2020 VA opinion, the examiner clarified that sudden cardiac death was an event, not an ongoing disease. She added that the Veteran might be at risk for another such event due to his heart disease. There was no medical opinion relating sudden cardiac death or sudden cardiac syndrome to service. As to undiagnosed illness, the Veteran's complaints have been linked to a specific diagnosis, as noted above. Regarding sleep apnea, post-service treatment records first show a diagnosis in a 2006 sleep study. A November 2019 VA medical opinion states it is less likely than not that obstructive sleep apnea is related to the Veteran's service, as it was not shown in service or for many years thereafter. There is no medical opinion relating sleep apnea to service. As to undiagnosed illness, the Veteran's complaints have been linked to a specific diagnosis, as noted above. Regarding vertigo, the Veteran underwent a VA examination in January 2011. He reported experiencing dizziness upon standing and walking since 2003. After examining the Veteran and reviewing the claims file, the examiner opined that the Veteran's dizziness was not caused by or due to a specific exposure event in Southwest Asia. In this regard, the examiner stated the Veteran's complaints of dizziness were orthostatic in nature, attributable to his heart condition and medication. There is no medical evidence relating vertigo or dizziness to service. In fact, the Veteran and his representative maintain that it is due to his (nonservice-connected) heart disability. See April 2017 representative's statement. Likewise, a February 2017 private opinion relates the Veteran's complaints of dizziness to his heart disability. The earliest post-service evidence of memory loss is a July 2010 VA diagnosis of cognitive memory loss secondary to hypoxia. An October 2019 VA psychiatric examination report notes the Veteran's complaints of memory loss since his post-service sudden cardiac death. He reported receiving therapy for his memory complaints for seven months after his sudden cardiac death. There is no medical evidence relating memory loss to service. In fact, the Veteran and his representative maintain that it is due to his (nonservice-connected) heart disability. See April 2017 representative's statement and February 2017 private opinion. To the extent the Veteran is claiming service connection for these disabilities secondary to a heart disability, and has submitted private opinions in support of this contention, the Veteran's heart disability is not a service-connected disability. The Veteran is not competent as a layperson to provide a nexus opinion in this case. These issues are medically complex, as they require specialized medical education. Jandreau, supra. In conclusion, although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claims and they are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Service Connection for a Right Shoulder and Cervical Spine Disability Relevant to the shoulder and cervical spine claim, the Veteran testified that his duties as a member of a tank crew required him to lift or catch heavy objects (including machine guns), and that he was not able to seek treatment because his unit was in the field. He also testified as to continuous pain since service. See May 2017 hearing transcript. This matter was remanded most recently to obtain an addendum medical opinion as to whether it was at least as likely as not (50 percent or greater probability) that the Veteran's condition was incurred in, or caused or aggravated by his military service. In particular, the examiner was to specifically address a November 1985 STR documenting joint pain, swelling, and discomfort on motion, as well as the Veteran's testimony discussing that his duties sometimes required him to lift or catch heavy items. An opinion was obtained in February 2021. In opining that the Veteran's shoulder strain was less likely than not incurred in service or caused by an event in service, the examiner stated that STRs were silent for complaints of specific shoulder pain or a diagnosis of shoulder disability. However, STRs show that the Veteran was seen in November 1985 for complaints of joint discomfort locking, and examination showed swelling, discomfort on motion and redness in "all" joint areas. Moreover, the examiner failed to discuss the Veteran's duties of lifting and catching heavy objects in relation to the current right shoulder disability. The United States Court of Appeals for Veterans Claims has held that medical examinations must be thorough and take into account the records of prior examinations and treatment. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). While the Board regrets the additional delay caused by remanding this claim again, remand for an additional medical opinion is necessary pursuant to Stegall v. West, 11 Vet. App. 268 (1998). Service Connection for Psychiatric Disability The Veteran asserts he has psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, as a result of his service or secondary to his heart disability. A December 2016 private psychological evaluation notes diagnoses of generalized anxiety disorder and PTSD. In August 2017, the Board remanded the claim, in pertinent part, for a psychiatric examination. Although the Veteran underwent a VA examination in October 2019, it is not adequate for adjudication purposes. In this regard, the examiner found that the Veteran had anxiety disorder, but did not have a diagnosis of PTSD that conformed to Diagnostic and Statistical Manual, Fifth Edition (DSM-5) criteria. However, because the Veteran's appeal was originally certified to the Board in January 2014 (prior to August 4, 2014), the applicable regulations require that a diagnosis of a psychiatric disability be in conformity with the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). Compare 38 C.F.R. § 4.125(a) (2013) with 38 C.F.R. § 4.125(a) (2015). See also 80 Fed. Reg. 14,308, 14,309 (Mar, 19, 2015) (The amendment changing from the DSM-IV to the DSM-5 does not apply to claims which had been certified to the Board or were pending before the Board, the Court, or the Federal Circuit, even if that claim was eventually remanded to the AOJ at a later time.) Thus, the Board finds that a remand is necessary in order to obtain an examination that conforms to the criteria set forth in the DSM-IV. The matters are REMANDED for the following actions: 1. Arrange for an addendum opinion from a qualified VA medical professional regarding the Veteran's claim of service connection for a neck and right shoulder disability. A complete rationale should be provided for each opinion given. The examiner should state whether it is at least as likely as not (50 percent or greater probability) that the Veteran's right shoulder strain was incurred in, or caused or aggravated by his military service. The examiner is to specifically address a November 1985 service treatment record documenting swelling, discomfort on motion and redness in "all" joint areas, as well as the Veteran's May 2017 testimony discussing that his duties sometimes required him to lift or catch heavy items and that he has had ongoing right shoulder pain since service. If the examiner determines that the requested opinions may not be provided without a physical examination of the Veteran, then such should be scheduled. The examiner must provide a complete rationale for any opinion given. If the examiner is unable to provide an opinion without resorting to speculation, he/she should so state and provide an explanation as to the reason(s) therefor. 2. Schedule the Veteran for an additional VA examination pertaining to his claim of entitlement to service connection for an acquired psychiatric disability. The claims folder must be made available for review. Any indicated tests and studies must be completed. Following examination of the Veteran and review of the claims file, the examiner should address the following: a.) Identify/diagnosis all psychiatric disorders per the DSM-IV that presently exists or that has existed during the appeal period. b.) If a diagnosis of PTSD per the DSM-IV is not made, the examiner is asked to identify the missing criteria and provide rationale for the negative finding, to include reconciling the negative finding with the diagnoses of PTSD that are included in the record. c.) If a diagnosis of PTSD per the DSM-IV is rendered, the stressor(s) should be identified. d.) If any other acquired psychiatric disorders are diagnosed for the entire period of the appeal (since June 2010), the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. The examiner is asked to provide rationale for all findings, to include reconciling the findings with the diagnosis of generalized anxiety disorder that is included in the record. The term 'at least as likely as not' does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. The examiner must include in the medical report the rationale for any opinion expressed. However, if the examiner cannot respond to an inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion, indicating whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or in the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 3. If PTSD is diagnosed, undertake all indicated development, to include stressor verification. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fletcher, Kathleen 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.