Citation Nr: 22017302 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-14 046 DATE: March 24, 2022 ORDER Entitlement to service connection for a heart disability is denied. FINDING OF FACT The Veteran's heart disability was not shown in service, did not manifest to a compensable degree within one year of service separation, is not otherwise related to service and is not the result of an unexplained chronic multi symptom illness. CONCLUSION OF LAW A heart disability was not incurred in service, nor may it be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 5103, 5103(A) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1962 to August 1964, and from December 1990 to September 1991. This matter is before the Board of Veterans' Appeal (Board) on appeal from a February 2014 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) of the Board in April 2019. The law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C. § 7107 (c); 38 C.F.R. § 20.707. However, the VLJ who conducted the April 2019 Board hearing is no longer employed by the Board. In September 2020, the Veteran and his representative were sent a letter notifying them that the VLJ who presided over the April 2019 hearing is no longer employed by the Board, and offering another hearing before a different VLJ. The letter notified the Veteran that he had 30 days from the date of letter to respond and that if no response was received the Board will assume the Veteran does not want another hearing and the Board will proceed accordingly. The Veteran did not respond to the letter. As such, the Board will consider the case on the evidence of record. The matter was denied in a November 2020 Board decision. However, the United States Court of Appeals for Veterans Claims (CAVC) vacated the denial and remanded the matter for additional development in a June 2021 Joint Motion. In October 2021, the Board remanded this issue for additional development. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include coronary artery disease, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2020). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden for certain chronic disabilities such as hypertension and coronary artery disease is through a demonstration of continuity of symptomatology. In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. 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). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). As a threshold matter, the Board notes that military records reflect that the Veteran had active military service in the Southwest Asia Theater of Operations during the Persian Gulf War. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317. The law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed below, thus are applicable in this case. Under 38 C.F.R. § 3.317, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. See 38 C.F.R. § 3.317(a)(1) (2020). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. § 1117(d) warrants a presumption of service connection. Factual Background and Analysis The Veteran seeks entitlement to service connection for a heart disability. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The evidence shows that the Veteran complained of chest pain and was provided an EKG during his active service. The Veteran underwent a VA examination in July 1998. The examiner diagnosed the Veteran with mild mitral regurgitation. The VA examiner further noted that the Veteran did not have a chronic heart murmur condition. However, the VA examiner did not provide an opinion as to whether the Veteran's mild mitral regurgitation was related to his active service. A February 2019 private treatment record reflects that the Veteran has an atrial fibrillation. A November 2019 VA treatment record reflects that the Veteran has an irregularly irregular heartbeat. The Veteran underwent a VA examination in March 2020. The VA examiner opined that the Veteran's heart condition was less likely than not caused by or the result of his active service as the Veteran's in-service EKG and EKGs subsequent to his active service revealed his heart was within normal limits. The VA examiner further explained that the Veteran's complaints of chest pain during his active service was medical terminology used to describe discomfort or pain centered in the chest and was not heart related. As noted by the Parties in the June 2021 Joint Motion for Remand (JMR), the Veteran reasonably raised a theory of entitlement to presumptive service connection under 38 C.F.R. § 3.317 for service connection that may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. In conjunction with the June 2021 JMR, the Veteran underwent a VA records review in November 2021. The VA examiner opined that it was less likely than not that the Veteran's heart disability was incurred in or caused by the claimed in-service event, injury or illness. The examiner noted that the Veteran had documented coronary artery disease and atrial fibrillation as well as a history of metabolic syndrome (insulin resistance) manifested as obesity, diabetes mellitus, hypertension, coronary artery disease, cardiovascular disease and obstructive sleep apnea. Metabolic syndrome was more often than not due to excessive carbohydrate ingestion. The examiner found that there was no evidence in the records that the Veteran's military service caused any of these conditions. The coronary artery disease and atrial fibrillation disabilities are conditions with a known etiology and are not an unexplained condition. When considering the pertinent evidence of record in light of the above-noted legal authority, the Board finds that service connection for a heart disability is not warranted. As reflected above, it has been determined that the Veteran had active military service in the Southwest Asia Theater of Operations. Accordingly, the law and regulations pertaining to undiagnosed illness incurred due to Persian Gulf service, discussed above, thus are applicable in this case. In this regard, the Board first observes that the Veteran's heart disability, which was diagnosed as coronary artery disease and atrial fibrillation are not related to an undiagnosed illness, as these disorders do, in fact, carry a diagnosis. The diagnosed coronary artery disease and atrial fibrillation disabilities are known diagnoses attributable to a specific cause, and not a medically unexplained chronic multi symptom illnesses, as explained by the November 2021 VA examiner. For these reasons, the Board concludes that the special provisions pertaining to undiagnosed illnesses are not applicable, and service connection for a heart disability cannot be granted under the presumptive provisions of 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. In cases where a Veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C. §§ 1110 and 1131 are warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the presumption is not the sole method for showing causation. However, where the issue involves a question of medical diagnosis or causation, as presented here, a claimant must establish the existence of a disability and a connection between the Veteran's service and the disability. As there is a current heart disability, the first element of service connection is satisfied. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). As noted above, service connection may be granted on a presumptive basis for certain chronic diseases, including coronary artery disease, if such disabilities are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In this instance however, service connection for a heart disability on a presumptive basis is not warranted as the record does not show evidence of a heart disability within one year of the Veteran's separation from active duty. To the extent that the Veteran is asserting that he experienced continuing symptoms of a heart disability thereafter, the Board acknowledges that a layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, as the Veteran was not diagnosed with a heart disability until many years after service and there was a significant period between his service and his post-service complaints where the medical record was silent for complaints of hypertension a heart disability, the Board concludes that the weight of the evidence is against a finding of any continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Regarding service connection on a direct basis, the Veteran's service treatment records demonstrate that in May 1991, the Veteran had complaints of chest pain which resulted in an electrocardiogram (EKG). However, despite these reports, the service treatment records, however, were negative for any or diagnoses of any chronic heart disability as the Board finds that the weight of the evidence is against a finding that the Veteran's current heart disability is etiologically related to the Veteran's military service. Notably, the only medical opinions addressing the etiologies of the heart disability weigh against the claim as the March 2020 and November 2021 VA examiners concluded that it was less likely than not that the Veteran's heart disability was the result of or caused by the Veteran's active military duty. The March 2020 VA examiner specifically noted the Veteran's in-service complaints and EKG but noted that the Veteran's complaints of chest pain during his active service was medical terminology used to describe discomfort or pain centered in the chest and was not heart related. None of the competent medical evidence currently of record refutes this conclusion, and the Veteran has not presented any such existing medical evidence or opinion. The Board notes the Veteran's contentions regarding the etiology of his claimed heart disability. To the extent that the Veteran himself and his representative contend that a medical relationship exists between his claimed heart disability and service, the Board acknowledges that the Veteran is competent to testify as to his observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). In the instant case, however, the Board finds that a heart disability is not a disability subject to lay diagnosis as this diagnosis requires medical training. More significantly, the Veteran does not have the medical expertise to provide an opinion regarding the claimed heart disability etiology. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999). Additionally, the VA examiners provided detailed rationale in support of their opinions and cited to the relevant evidence. For this reason, the VA examiners' opinions are the most probative evidence of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a heart disability. The benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.