Citation Nr: 22040103 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-07 881 DATE: July 13, 2022 ORDER Entitlement to service connection for heart problems, to include as due to a blood clot condition (including deep vein thrombosis and pulmonary embolus) and atrial fibrillation, is denied. FINDING OF FACT The Veteran's atrial fibrillation, deep vein thrombosis, and pulmonary embolus did not manifest during his active service, and were not caused or aggravated by an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for heart problems have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1985 to March 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Depart of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in most recently in February 2022, at which time it was remanded for additional development. That development having been completed; this claim is once again before the Board. 1. Entitlement to service connection for heart problems The Veteran has raised several theories of entitlement as to his claim for service connection for heart problems, including that his heart problems are a result of his obesity or alternatively, due to gas chamber exposure during service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 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, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38C.F.R. §§ 3.303(b), 3.309. Obesity may act as an "intermediate step" to establish proximate causation between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a); VAOPGCPREC 1-2017 at 7-9. To establish a service-connected disability proximately caused a current disability through obesity, the adjudicator must determine: (1) whether the service-connected disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and (3) whether the current disability would not have occurred but for obesity caused by the service-connected disability. Id. at 9-10. If all of the above questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. at 10. 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 Board concludes that, while the Veteran has been treated for atrial fibrillation, deep vein thrombosis, and pulmonary embolus, the evidence of record persuasively weighs against finding that the Veteran's diagnoses began during service or are otherwise related to an in-service injury or disease, to include as secondary to a service-connected disability. A review of the Veteran's service treatment records (STRs) shows no relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of heart complaints. The Veteran's January 1989 separation examination was normal. On his corresponding Report of Medical History form, the Veteran explicitly denied heart trouble. September 2017 VA treatment records reflects that the Veteran reported a history of deep vein thrombosis (DVT) and pulmonary embolus (PE). The treating physician noted that the Veteran was on "lifelong" anticoagulants, and current VA treatment records reflect continued treatment. In a May 2019 private opinion, a consultant concluded that the Veteran's weight gain was due to his service-connected back and lower extremity disabilities. The Veteran was afforded a VA examination in October 2019. The examiner opined that it was less likely than not that the Veteran's heart problems, including atrial fibrillation, were aggravated beyond their natural progression by his service-connected lumbar spine disability and associated radiculopathy of the bilateral lower extremities. The examiner's rationale was that there were no direct pathophysiologic or medical studies that showed that the Veteran's heart problems were aggravated by or worsened by his service-connected disabilities. The examiner further stated that there were no records that showed treatment of any heart problems during service. In June 2020, the October 2019 VA examiner provided an addendum opinion, addressing the Veteran's weight gain. The examiner opined that it was less likely as not that the Veteran's service-connected lumbar spine disability and radiculopathy caused the Veteran to become obese. The examiner explained that obesity commonly has multiple contributing factors and causes, as it is commonly idiopathic, or multifactorial in nature. The examiner further stated that there is no direct pathophysiologic link between lumbar spine disability and radiculopathy causing obesity since there is no direct causal relationship between the two conditions. However, the October 2019 and June 2020 VA opinions did not address the May 2019 private opinion which associated the Veteran's weight gain with his service-connected disabilities. As such, the October 2019 and June 2020 VA opinions were inadequate in that they did not consider all of the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Dalton v. Nicholson, 21 Vet. App. 23 (2007). The Veteran was afforded another VA examination in April 2021. The VA examiner determined that the Veteran did not currently have a heart-related disability, and as such, there was no nexus to service. The examiner also asserted that any heart condition would be separate from any service-connected musculoskeletal disability that does not have a direct pathophysiologic pathway. However, the presence of a chronic disability at any time during or immediately preceding the claims process can support a grant of service connection. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowski v. Shinseki, 26 Vet. App. 289, 294 (2013) (holding the current disability requirement may be satisfied by evidence of the disability shortly before the claim is filed). As such, the Board remanded the Veteran's claim for another opinion. The Veteran was afforded another VA examination in October 2021. The examiner opined that the Veteran had no diagnosis of atrial fibrillation. The examiner noted that the Veteran was noted to have a diagnosis of atrial fibrillation in December 2008 but that the EKG did not show rhythm problems. The examiner concluded it was less likely than not related to service, and further that there was no evidence of aggravation beyond its natural progression. An opinion regarding the relationship of the Veteran's disabilities to obesity was provided in October 2021. The Veteran explained that because he was not able to exercise, he maintained his weight by watching his diet. The Veteran stated that his weight fluctuated between 230 to 234 pounds and that prior to experiencing chronic pain brought on by his service-connected disabilities, his weight was 234 pounds. He explicitly denied that his pain and limited ability to exercise caused weight gain. The VA examiner reviewed the evidence in the claims file with the Veteran in which the Veteran and his representative attributed the weight gain to the Veteran's service-connected back and lower extremity disabilities. Following a review, the Veteran refuted that evidence and again explicitly denied weight gain or obesity in conjunction with his service-connected disabilities. In light of all the evidence of record, the Board finds that the weight of competent and credible evidence is against finding that the Veteran's heart conditions were incurred in or caused by service or a service-connected disability. As an initial matter, neither the Veteran nor his representative contend that his heart conditions are directly related to service and the record does not support this theory. As noted above, the Veteran explicitly denied heart trouble at his separation examination in January 1989, and his STRs do not reveal relevant complaints, objective findings, treatment, diagnosis, or any other manifestations of atrial fibrillation, DVT, or PE. Accordingly, service connection on a direct basis is not warranted. The Board has also considered the Veteran's contentions that his lumbar spine disability and associated radiculopathy of the bilateral lower extremities caused his obesity. In this regard, the Board finds the October 2021 VA examination report highly probative. The report notes that the Veteran reviewed and then explicitly denied the evidence in the claims file regarding the contentions made by him and his representative. The Board finds the October 2021 VA examination reports highly probative. The VA examiner explicitly addressed the Veteran's contentions that his service-connected disabilities caused weight gain and the Veteran refuted that argument. The Veteran has also contended that his heart condition is related to exposure to gas in gas chambers during service, which he contends has required him to take blood thinners. September 2017 VA treatment records reflect that the Veteran reported a history of deep vein thrombosis (DVT) and pulmonary embolus (PE). The treating physician noted that the Veteran was on "lifelong" anticoagulants, and current VA treatment records reflect continued treatment. A VA medical opinion was provided in March 2022. The examiner opined that the Veteran had a history of DVT and PE beginning in 2009. The examiner concluded that the Veteran was diagnosed with hypercoagulability syndrome of undetermined etiology, which was less likely than not due to service as the Veteran's service treatment record was silent for DVT, PE, or blood clotting disorders. Taken together, the several VA opinions of record establish that the Veteran's heart problems, to include atrial fibrillation and DVT and PE, are not at least as likely as not related to an in-service injury or disease, including as due to obesity caused by service-connected disability. The October 2021 VA examiner noted that while the Veteran has had a diagnosis of atrial fibrillation during the period on appeal, no probative evidence has linked his atrial fibrillation to service. The March 2022 VA examiner noted that the Veteran is diagnosed with DVT and PE; however, these conditions have also not been linked to his active service, nor to any service- connected condition. While the private consultant concluded that the Veteran's service-connected disabilities led to his obesity which in turn caused his health problems, these conclusions are directly contradicted by the Veteran, as explained above. Neither consultant noted an examination or any contact with the Veteran. Their findings are inadequate as neither addressed factors other than limited mobility and the reported inability to run or jog. The private consultants' opinions are conclusory, lack adequate medical analysis, and are therefore afforded little probative weight. Lastly, as to the provisions of 38 C.F.R. § 3.303(b), relating to chronicity and continuity of symptomatology in establishing service connection and that such provisions apply to those chronic conditions, none of the Veteran's claimed heart problems were noted during service or within one year of separation. See Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). As such, the Board finds that there is no credible contention of a continuity of associated symptoms or problems since service and the provisions of 38 C.F.R. § 3.303(b) are not for application. The Veteran believes his heart problems are related to an in-service injury, event, or disease, or are due to service-connected disability. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the October 2021 and March 2022 VA examinations of record. (Continued on the next page) As a result, the evidence is persuasively against the claim. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and entitlement to service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. N. Rippel Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Geer, Associate 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.