Citation Nr: A25035277 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240723-460389 DATE: April 16, 2025 ORDER Service connection for syncope is denied. FINDING OF FACT The evidence does not show that the Appellant has a current syncope disability that was incurred in service or due to service. CONCLUSION OF LAW The criteria to establish service connection for a syncope disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.304, 3.309, 3.310; Diagnostic Code 6204. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty from March 2012 to April 2012. She received an entry level separation due to erroneous enlistment as evidenced by a mental or physical condition that existed prior to service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2023 rating decision by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The record shows that the AOJ denied service connection for syncope in May 2018 and September 2021 rating decisions, which were not appealed, and became final. The Appellant filed a February 2023 supplemental claim, which was denied in an April 2023 rating decision based on the lack of new and relevant evidence (NRE). In July 2023, the Appellant requested a higher-level review. In November 2023, the AOJ considered the evidence of record at the time of the April 2023 rating decision and denied service connection. While the AOJ did not specifically state that NRE was received, the AOJ did readjudicate the merits of the claim in the November 2023 rating decision; thus, the Board concludes that there was an implicit finding of NRE by the AOJ. The Board is bound by this favorable fact. In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. The Board notes that evidence was submitted after the April 2023 rating decision that the Board could not consider in this appeal, as the evidentiary window closed with the April 2023 decision. If the Appellant would like VA to consider any evidence that was submitted that the Board could not consider, the Appellant may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. It is unclear from the Appellant's statements and the brief submitted by her representative whether she is also attempting to seek disability compensation for hypertension as part of her claim for syncope. However, these are two different medical conditions, and service connection for hypertension has also been previously denied. If the Appellant would like to do so, she may file a Supplemental Claim (VA Form 20-0995) for hypertension, and submit new and relevant evidence on the claim. 38 C.F.R. § 3.2501. VA regulations provide that, "[u]pon request, a claimant is entitled to a hearing on any issue involved in a claim . . . before VA issues notice of a decision on an initial or supplemental claim." 38 C.F.R. § 3.103(d)(1). That regulation does not indicate that the claimant is entitled to pre-decisional notice of this optional hearing. In fact, 38 C.F.R. § 3.103(b)(1) provides that, following a decision, "[c]laimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief . . . [including] the right to a hearing on any issue involved in the claim as provided in paragraph (d) of this section ...." Read together with § 3.103(d), the only notice § 3.103(b) requires is that a claimant be provided notice of the right for a hearing with notification of the decision (by definition, a post-decisional notice). In November 2022, VA amended VA Form 21-526EZ and in May 2024 VA amended VA Form 20-0995 to inform claimants of the right to a hearing at any time during the claims process. The claim in this appeal was filed on the September 2022 version of VA Form 20-0995, prior to the amended version. However, the Board finds that any error in the failure to inform the Appellant of the right to a pre-decisional hearing before the Regional Office (RO) was harmless error. In Bowen, the Court found that when a claimant is denied a hearing before the RO, there is no due process violation if he is subsequently offered the opportunity for a hearing before the Board, even if a hearing was not requested or conducted, as long as there is no violation of due process concerning the Board hearing opportunity. Bowen v. Shinseki, 25 Vet. App. 250, 253-4 (2012). The facts in the case can be differentiated on several levels, to include that the Appellant did not actually request an RO hearing and the issue in Bowen was not one of notice. Regardless, the Board cannot find a basis to conclude that the underlying holding and logic of the Bowen case would not lead to the same finding of no prejudicial error under the procedure and facts of this case. The April 2023 and November 2023 notification letters informing the Appellant of the rating decisions included a VA Form 20-0998, Your Right to Seek Review of Our Decision, outlining the Appellant's appeal options, to include a hearing before the Board. Additionally, in the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Appellant was provided with an option to request a hearing with a Veterans Law Judge. The Appellant instead selected direct review by a Veterans Law Judge, and the form explicitly states that by choosing this option, the Appellant does not want a Board hearing. Because the Appellant was provided with notice of the right to appeal to the Board, as well as the right to a Board hearing, there was no due process violation in the processing of the claim or any suggestion that the Appellant was prejudiced by the failure of VA to provide a hearing at the RO level. See Bowen. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Service treatment records show that the Appellant completed a July 2011 Report of Medical History for enlistment and denied then or previously having had dizziness or fainting spells. An evaluating physician conducted a clinical examination, completed a Report of Medical Examination noting normal findings, and found the Appellant qualified for service. The Appellant completed medical documentation and received treatment while in boot camp. In March 2012, the Appellant completed a dental health questionnaire and denied then or previously experiencing fainting or dizziness. In an April 2012 female wellness screening questionnaire, the Appellant denied having a history of lightheadedness or dizziness. The Appellant was treated in April 2012 for headache and elevated blood pressure, and it was noted that she did not then have symptoms of vertigo, lightheadedness, or fainting. A few days later, in April 2012, the Appellant was treated in an emergency department and diagnosed with syncope after a syncopal episode. In April 2012, the Appellant was processed for administrative separation from service. Documentation states the reason for separation was "Defective Enlistment and Induction - Erroneous Enlistment as evidenced by a physical or mental condition that existed prior to entry into the naval service." The medical conditions identified as disqualifying the Appellant for service were exertional headaches and chronic high blood pressure. Post-service, the Appellant completed medical history questionnaires at a women's care practice in May and June 2016 and did not then indicate experiencing fainting or dizzy spells. In December 2016, the Appellant denied experiencing dizziness at a family health clinic visit. The Appellant denied experiencing lightheadedness during May 2017 and May 2019 medical visits. In April 2019 and May 2019 medical office visits, the Appellant reported no dizziness. In August 2019, the Appellant was treated in an emergency department for dyspnea and reported then having moderate dizziness but no fainting episodes. In December 2019 the Appellant was treated for hypertension and reported an episode where she felt like she was going to faint. The Appellant reported no episodes of dizziness at February, May and October 2020 medical visits. Medical records show that the Appellant was treated at an emergency department in November 2020 for a complaint of syncope which occurred after a workout. The clinical impression was syncope and mild dehydration. The Appellant reported no dizziness at a January 2021 medical visit, and no fainting episodes at July and September 2021 medical visits. The Appellant had a VA examination in September 2021. The examiner conducted a physical examination and reviewed the Appellant's medical records. The Appellant reported that she had problems with extreme stress or exercise which caused her to tremble and "go out of it," and that she had passed out a couple of times. The examiner opined that a diagnosis for narcolepsy was not warranted since there was no evidence of a narcolepsy diagnosis or treatment for narcolepsy symptoms. The VA examiner also conducted a neurological examination, which was normal. The examiner noted that a CT of the brain and EKG in November 2020 showed normal results. The examiner remarked that the Appellant's syncope was diagnosed as acute only in April 2012, and once in November 2020 documented as related to dehydration. The examiner opined that a diagnosis for a central nervous system disorder was not warranted. The VA examiner opined that the claimed syncope condition was not incurred in or caused by an in-service injury, event or illness. She further opined that a diagnosis for chronic syncope could not be made. The examiner noted that the September 2021 VA examination showed normal results, and that the reported symptoms were subjective only. The examiner noted the Appellant had two acute episodes of syncope in service in April 2012 with subjective reports of symptoms of dizziness and hypertension, and an acute episode in November 2020 related to dehydration. The examiner noted that the Appellant's in-service April 2012 medical records showed that her syncope had resolved, and that the November 2020 episode was acute only. In February 2023 correspondence, the Appellant's private physician, Dr. L.K., stated that the Appellant had five total episodes of syncope with most episodes associated with exertion. The physician stated that the Appellant has severe iron deficiency anemia likely contributing to symptoms, and Hashimoto's thyroiditis which many or may not have contributed to syncopal episodes. The Appellant has asserted throughout the appeal that she has a current syncope disability due to service. The Appellant is competent to report observable symptoms. The Appellant's syncope condition requires specialized training for determinations as to diagnosis and causation. The Appellant is not competent to render a nexus opinion to establish a link between her claimed syncope condition and military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The Appellant has a current syncope disability, according to Dr. L.K., and an in-service event where she was treated for syncope. The issue for the Board is whether there is a nexus or link between the current disability and the in-service diagnosed condition. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). The September 2021 VA examiner concluded that the claimed syncope condition was not incurred in or caused by an in-service injury, event or illness, noting that the syncopal episode in service was acute and had resolved, and that a diagnosis for chronic syncope could not be made. That conclusion is significant probative medical evidence because the examiner examined the Appellant, considered her lay statements, reviewed her medical records, and provided a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In addition, the Appellant's private physician, Dr. L.K., opined that the Appellant's syncopal symptoms were likely due to severe iron deficiency anemia and possibly Hashimoto's thyroiditis, which are not service-connected conditions; therefore, service connection on a secondary basis is not warranted. 38 C.F.R. § 3.310. There is also no probative evidence that the Appellant had iron deficiency anemia or Hashimoto's thyroiditis in service. She alleges that her Hashimoto's thyroiditis was "brought on and/or triggered" by exercising during service, but this contention is not persuasive. However, she is not a medical professional, so her opinion on this question is not competent evidence. Service connection for Hashimoto's thyroiditis was denied in November 2021 rating decision, and that issue is not part of this appeal. The Board has considered the objective and lay evidence and finds that evidence does not establish a link or nexus between the Appellant's current disability and service. The record shows that the Appellant had an acute in-service syncopal episode in April 2012 and was diagnosed with syncope. The Appellant reported moderate dizziness at medical visits in 2019, but the record does not show that she had another syncopal episode until an acute episode in November 2020, reportedly after a workout and related to dehydration. The VA examiner opined that the syncope condition diagnosed in 2012 had resolved. Based on the above, the Board finds that the Appellant's in-service syncope condition had resolved. The evidence does not show that the Appellant had a chronic syncope condition since service. No examining or treating practitioner has opined that the Appellant's current syncope disability is related to service. Service connection for syncope is denied. As the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lawrence Hubert 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.