Citation Nr: 22016325 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-22 018 DATE: March 21, 2022 ORDER 1. Entitlement to a temporary total evaluation for stroke associated with diabetes mellitus type II is denied. 2. Entitlement to service connection for a heart disability, to include valvular heart disease, as secondary to service-connected diabetes mellitus type II, is denied. FINDINGS OF FACT 1. The Veteran has not suffered a brain hemorrhage within 6-months prior to any portion of the rating period on appeal, as his most recent stroke occurred in 2016, and the Veteran submitted the claim for service connection for residuals of a stroke in September 2018. 2. Valvular heart disease is not caused or aggravated by the service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. The criteria for a temporary total evaluation for stroke associated with diabetes mellitus type II have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8008. 2. The criteria for service connection for a heart disability, to include valvular heart disease, as secondary to service-connected diabetes mellitus type II have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1971 to February 1974. In May 2021, the Veteran and his wife testified at a virtual hearing before the undersigned Veterans Law Judge. 1. Entitlement to a temporary total evaluation for stroke associated with diabetes mellitus type II At the May 2021 Board hearing, the Veteran stated his wished to have the record stand on its own for the claim of entitlement to a temporary total evaluation for stroke associated with diabetes mellitus type II. The Veteran stated that he last had a stroke in 2016. The Veteran seeks to establish entitlement to a temporary total evaluation of 100 percent for stroke associated with diabetes mellitus type II. The beginning of the rating period for consideration in this appeal is defined by the September 28, 2018 effective date of the grant of service connection for the stroke associated with diabetes mellitus type II, as assigned by the December 2018 rating decision. In effecting this grant, the RO assigned the date that the Veteran submitted a VA Form 21-526, Fully Developed Claim (Compensation), which was when he filed the claim for service connection for residuals of a stroke. The Veteran's stroke is associated with the service-connected diabetes mellitus type II, which is rated under DC 8008. Organic diseases of the central nervous system are rated pursuant to a General Rating Formula for neurological conditions and convulsive disorders. Organic diseases of the central nervous system are rated from 10 to 100 percent. 38 C.F.R. § 4.124a, DC 8008. DC 8008 provides for a 100 percent disability rating for 6 months from the onset of the disability with residuals of the disability thereafter rated at a minimum of 10 percent disabled. The Board notes that the medical evidence shows that the Veteran suffered a stroke in 2016. For example, an August 2016 VA treatment documents the Veteran's admission for a stroke, and at the May 2021 Board hearing, the Veteran stated that his last stroke was in 2016. The Veteran submitted the claim for service connection for residuals of a stroke in September 2018. Service connection for residuals of a stroke was granted as of September 2018. The evidence does not support that the Veteran has suffered a stroke during the rating period on appeal and was not service connected for a stroke within six months of it occurring. Accordingly, the 100 percent rating available under DC 8008 for six months following stroke is not for application in this case. After reviewing the medical evidence, the Board finds that entitlement to a temporary total rating for residuals of stroke during the relevant rating period is not warranted. Service Connection Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either(a) proximately caused by or (b) proximately aggravated by a service-connected disability. 2. Entitlement to service connection for a heart disability, to include valvular heart disease, as secondary to service-connected diabetes mellitus type II At the May 2021 Board hearing, the Veteran testified that his heart disease has been linked to the service-connected diabetes in verbal conversations by VA doctors. The Veteran clarified that he is seeking entitlement to service connection for a heart disability only on a secondary basis, which is corroborated by the Veteran's September 2018 VA Form 21-526 therefore the Board shall limit its analysis to this theory of entitlement. The Board has carefully reviewed the evidence of record and finds that the evidence is persuasively against the award of service connection for heart disability, to include valvular heart disease on a secondary basis. The reasons follow. The Veteran has been diagnosed with a heart disability, and thus there is evidence of a current disability. For example, in the November 2018 VA examination the Veteran was diagnosed with valvular heart disease. Thus, the facts establish that the first element of a service-connection claim is met. However, the evidence is persuasively against a finding that the Veteran's heart disease is caused or aggravated by the service-connected diabetes mellitus type II. For example, in the December 2018 VA opinion, which was issued in relation to the November 2018 VA examination, the examiner opined that the Veteran's heart disability is not proximately due to or aggravated by diabetes. The examiner explained that the Veteran has valvular heart disease and is status-post valve replacement. The examiner noted that the Veteran has no history of ischemic heart disease. The examiner stated that valvular heart disease is separate and distinct from the service-connected diabetes and there is no etiological relationship between the two disabilities. The Board affords this opinion probative value because it is based upon a review of the Veteran's medical history, it provides an analysis of the relationship between the Veteran's specific heart disease and diabetes and is based upon a well-reasoned rationale, which relies on medical principles. While the examiner did not specifically address "aggravation," the Board finds that the opinion is distinguishable from the holding in El-Amin v. Shinseki, 26 Vet. App. 136 (2013). In that case, the U.S. Court of Appeals for Veterans Claims found that the examiner's opinion that it was "more likely than not that the veteran's alcohol abuse was related to factors other than the veteran's post-traumatic stress disorder" did not rule out the possibility that the veteran's service-connected PTSD aggravated his alcohol abuse to some degree. Id. In contrast, here, the December 2018 examiner opined that that there was no etiological relationship between valvular heart disease and diabetes mellitus. Because the examiner clearly opined that there was no medical relationship between the service-connected diabetes mellitus and valvular heart disease, the examiner's statement, unlike that of the examiner in El-Amin, rules out the possibility that the service-connected disability may aggravate to some degree the non-service-connected disability of valvular heart disease. Thus, the Board finds that the December 2018 examiner's opinion addressed both causation and aggravation and is, therefore, probative regarding whether the service-connected disability caused or aggravated the valvular heart disease. This opinion establishes that the Veteran's heart disability is not caused or aggravated by the service-connected diabetes mellitus type II. Although the Veteran contends that he has been told verbally that his heart disease is related to the service-connected diabetes mellitus, this does not establish competent evidence that valvular heart disease is caused or aggravated by the service-connected diabetes mellitus. The Veteran has submitted several statements in connection for his claims for other disabilities, but has not referenced his heart disability in these submissions. Accordingly, this evidence does not support that the Veteran's heart disability is caused or aggravated by the service-connected diabetes mellitus. While the Veteran has alleged that his heart disease is related to the service-connected diabetes mellitus, he is not competent to attribute valvular heart disease to diabetes mellitus, as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's opinion is nonprobative evidence. At the present time, there is no competent evidence of a nexus between the heart disability and service-connected diabetes mellitus type II to weigh against the negative VA medical opinion, and the nexus element of a secondary service-connection claim is not met. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for heart disability, to include valvular heart disease, as secondary to service-connected diabetes mellitus type II, is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Husain, 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.