Citation Nr: 21041959 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 12-22 409 DATE: July 10, 2021 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for a stroke is denied. Entitlement to service connection for multi-infarct dementia is denied. FINDINGS OF FACT 1. The objective medical evidence shows that the Veteran's hypertension was not caused by an event, injury, or illness during active service, nor did it manifest to a compensable degree within one year of separation from active service, nor was it shown to be secondary to the Veteran's service-connected heart disabilities. 2. The Veteran's stroke was not secondary to service-connected disabilities and is not otherwise related to an in-service injury or disease. A stroke was first reported years after separation from service. 3. The Veteran's dementia was not secondary to service-connected disabilities and was not otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension due to service or service-connected disorders have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for stroke due to service or service-connected disorders have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 3. The criteria for service connection for dementia due to service or service-connected disorders have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to November 1979. The Veteran passed away in February 2019; the Appellant is the Veteran's spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA). The Board remanded these issues in December 2018 and March 2021 for further evidentiary development. The case has returned to the Board for appellate review. In its March 2021 decision, the Board found that the Veteran served in Thailand during the Vietnam War and the evidence is at least in equipoise that he was exposed to herbicide agents in service. Further, the Board granted service connection for a heart disability in the March 2021 Board decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or permanently made worse beyond its natural progression a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra. Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing an in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). If a veteran was exposed to an herbicide agent during active service, certain diseases will be service connected. These diseases need only manifest to a degree of at least 10 percent at any time after service, with the exception of chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, which must manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent. 38 C.F.R. § 3.307(a)(6)(ii). 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to service connection for hypertension The Appellant contends that the Veteran's hypertension was related to herbicide exposure during his military service. In the alternative, the Appellant contends that the Veteran's hypertension was related to his service-connected heart disability. Pursuant to the Board remand, a VA opinion was obtained in May 2021. The May 2021 examiner provided a negative nexus opinion with the rationale that the Veteran was neither diagnosed with nor had any evidence of a diagnosis of hypertension during his military service. The examiner provided that recent studies have shown an association between dioxins and hypertension; however, evidence of a causal link between dioxins and hypertension have been limited and inconsistent and studies have shown that their results are only suggestive and should be treated as such. The examiner concluded that there is no generally accepted cause-and-effect relationship between Agent Orange exposure and the development of hypertension. The May 2021 examiner also provided a negative nexus opinion for secondary service connection to the Veteran's service-connected heart disability with the rationale that the Veteran was first diagnosed with hypertension in 1998 and his first myocardial infarction and his diagnosis of coronary artery disease (CAD) did not occur until 2000. The examiner noted that the Veteran had CAD with myocardial infarctions causing decreased left ventricular ejection fraction, diagnosed as ischemic cardiomyopathy which caused him to need implantation of a pacemaker in June 2008. The examiner further noted that the Veteran's cardiac conditions lead to a weakened heart and did not cause or aggravate hypertension. The Board notes that there is no opinion to the contrary. As stated earlier, certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period after service, usually one year. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a) (3), 3.309 (a). Cardiovascular-renal disease, including hypertension, is included among chronic diseases set forth in the regulation, as hypertension is considered an early symptom long preceding the development of various related diseases. However, the record gives no indication of the manifestation of hypertension to a compensable degree within a year of separation from active service. Moreover, because it was never identified in service as a diagnosed disorder or directly after, it would be impossible to establish continuity of symptomatology following upon service and, as just stated, the subsequent record does not reflect this. Therefore, the presumption of service connection for hypertension as a chronic disease is not available. The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Appellant contends that she believes the Veteran's hypertension to be related to his military service or to his service-connected heart disability. The Board acknowledges the Appellant's lay statements regarding the nature and etiology of the Veteran's hypertension and the Veteran's statements prior to his death. However, while the Appellant and Veteran are competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of the Veteran's disability. The objective medical evidence does not show that the Veteran's hypertension had its onset in service or was otherwise incurred during his military service. The May 2021 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board's view, persuasive, especially with consideration given to the entire record. Accordingly, based on the evidence discussed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for hypertension. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. 2. Entitlement to service connection for a stroke The Appellant contends that the Veteran is entitled to service connection for a stroke. Specifically, the Appellant contends that the Veteran's stroke was related to his heart disability. The March 2021 Board decision remanded this matter to obtain a VA medical opinion, to include an opinion regarding secondary service connection. The first reports of strokes were many years after service separation. Pursuant to the Board remand, a VA opinion was obtained in May 2021. The May 2021 examiner provided a negative nexus opinion with the rationale that the Veteran had two strokes in 2000/2003 and another in 2008, the anatomy of his stokes were consistent with blockage of a single cerebral artery in both cases. The examiner provided that the Veteran's service-connected heart disabilities include ICD/pacemaker placement, CAD and cardiomyopathy would not cause or aggravate his stroke. The examiner remarked that the Veteran did not have any history of atrial fibrillation due to his service-connected heart disabilities to put him at higher risk for stroke, he never had coronary artery bypass surgery which could possibly lead to stroke due to heart disabilities. The examiner further noted that the Veteran did have evidence of a small left ventricular apical thrombus in June 2008 which was most likely due to his service-connected heart disabilities and occurred three weeks prior to his second stroke. The examiner stated that embolization of a left ventricular thrombus can cause an ischemic stroke such as the Veteran had in July 2008, however, a repeat echocardiogram in August 2008 documented the same description of a small left ventricular apical thrombus indicating that the Veteran's apical thrombus did not embolize leading to his stroke. The examiner concluded that it is most likely that the Veteran's strokes were caused by a combination of the same risk factors that led to his CAD, including hypertension, hyperlipidemia, history of tobacco abuse, and family history of CAD. The Board notes that there is no opinion to the contrary. The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Appellant contends that she believes the Veteran's stroke to be related to his military service or to his service-connected heart disability. The Board acknowledges the Appellant's lay statements regarding the nature and etiology of the Veteran's stroke and the Veteran's statements prior to his death. However, while the Appellant and Veteran are competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of the Veteran's disability. The objective medical evidence does not show that the Veteran's stroke had its onset in service or was otherwise incurred during his military service. The May 2021 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board's view, persuasive, especially with consideration given to the entire record. Accordingly, based on the evidence discussed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a stroke. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. 3. Entitlement to service connection for multi-infarct dementia The Appellant contends that the Veteran is entitled to service connection for dementia. Specifically, the Appellant contends that the Veteran's dementia was related to his service-connected heart disability. The March 2021 Board decision remanded this matter to obtain a VA medical opinion, to include an opinion regarding secondary service connection. Pursuant to the Board remand, VA opinions were obtained in April 2021 and May 2021. The April 2021 examiner provided a negative nexus opinion with the rationale that the Veteran's heart disabilities were not known to cause or aggravate dementia. The examiner noted that although the records indicate that the Veteran's dementia was vascular in origin, there is insufficient evidence to support that his dementia was cardiac in origin. The examiner noted that the computerized tomography (CT) scan from May 2018 showed some low density encephalomalacia which was opined by the radiologist as maybe due to previous vascular or traumatic insult, moderate patchy low density in the periventricular white matter was opined as being likely representing demyelination due to small vessel ischemic change, which are conditions unrelated to his service-connected heart disabilities. The examiner remarked that the records endorse a history of falls due to leg weakness, which could historically contribute to brain trauma and/or dementia but CT scan shows no evidence of intracranial hemorrhage. The examiner noted a March 2010 treatment note that endorses a history of bullet to the head which would also be a significant traumatic event contributing to cognitive decline and/or dementia, which would also be independent of his service-connected disabilities. The May 2021 examiner also provided a negative nexus opinion with the rationale that the Veteran's dementia is more likely than not caused by his multiple strokes, the etiology of which was most likely a combination of risk factors including hypertension, hyperlipidemia, history of tobacco abuse and family history of vascular disease. The Board notes that there is no opinion to the contrary. The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Appellant contends that she believes the Veteran's dementia to be related to his military service or to his service-connected heart disability. The Board acknowledges the Appellant's lay statements regarding the nature and etiology of the Veteran's dementia and the Veteran's statements prior to his death. However, while the Appellant and Veteran are competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of the Veteran's disability. The objective medical evidence does not show that the Veteran's dementia had its onset in service or was otherwise incurred during his military service. The May 2021 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board's view, persuasive, especially with consideration given to the entire record. Accordingly, based on the evidence discussed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for dementia. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.