Citation Nr: 1749110	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  13-21 580	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for heat syncope.


REPRESENTATION

Appellant represented by:	Deana M. Adamson, Attorney-at-Law 


ATTORNEY FOR THE BOARD

A. Yaffe, Associate Counsel







INTRODUCTION

The Veteran had active service from July 1978 to March 1989, January 1991 to March 1991, March 1995 to September 1995, and January 1996 to June 1996.  He also had service in the Reserves, to include a confirmed period of active duty for training (ACDUTRA) in August 1999.  

This matter comes before the Board of Veterans' Appeals (Board) from a November 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 
 
In June 2015, the Board, in pertinent part, remanded the claim for further development, to include scheduling the Veteran for a VA examination with connection to his claim. 

The case has now been returned to the Board for further appellant review. 


FINDING OF FACT

1.  During an August 1999 ACDUTRA period, the Veteran was treated for a heat- related injury.

2.  The Veteran is not currently diagnosed with heat syncope or any residuals thereof. 


CONCLUSION OF LAW

The criteria for service connection for heat syncope have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).


Service Connection - Applicable Laws and Regulations

The term "veteran" is defined in 38 U.S.C.A. § 101 (2) (West 2014) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable."  Active military, naval, or air service includes any period of active duty for training (ACDUTRA), during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty.  38 U.S.C.A. § 101 (21), (24) (West 2014); 38 C.F.R. § 3.6 (a), (d) (2017).  ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state.  38 U.S.C.A. §§ 101 (22), 316, 502, 503, 504, 505 (West 2014); 38 C.F.R. § 3.6 (c)(3) (2017). 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (a) (2017).  In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  In order to establish service connection for a claimed disability on a direct basis, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology.  However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

When a preexisting disability is not "noted" prior to entry, VA has the burden to demonstrate, by clear and unmistakable evidence, both that the disorder at issue preexisted service and that it was not aggravated by service.  See VAOPGCPREC 3-2003 (July 2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).  If the disability is shown to be preexisting, it will be presumed to have been aggravated by service where there was an increase in disability during service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; see also Horn v. Shinseki, 25 Vet. App. 231, 238 (2012).

However, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA.  Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to Appellant's claim where she or he served only on ACDUTRA and had not established any service-connected disabilities from that period).  See also Smith v. Shinseki, 24 Vet. App. 40, 47 (2010).

The laws authorizing Veterans' benefits provide benefits only where there is current disability, as identified by a medical diagnosis.  In the absence of proof of a current disability, there is no valid claim of service connection.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). 
When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.
 
The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C.A. § 5107 (West 2014).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Analysis

The Veteran asserts that he has a current disability that is related to an episode of heat syncope during service.   

The Veteran's service treatment records (STRs) dated January 1991 and March 1996 reveal reports of a history of dizziness and fainting spells.  

On August 21, 999, during a period of ACDUTRA at Fort Polk, he experienced a heat-related injury while working in the heat during a rotation exercise in the field.  He was admitted to a military hospital.  The injury was determined to have occurred in the line of duty.  See Statement of Medical Examination and Duty Status.

In December 2011, the Veteran submitted a service connection claim for heat syncope, as relevant here.

The Veteran's post-service records since the date of the claim show no diagnosis of heat syncope or residuals thereof.  

Pursuant to the June 2015 Board remand, the Veteran underwent a VA examination in December 2016 to determine whether he has a current diagnosis of heat syncope and if so, whether it is related to his service.  The Veteran reported that the symptoms began around 2000, when he was working in the heat causing him to black out.  He was taken to the hospital and was discharged two days later.  He further indicated that his body gets hot quickly and that he sweats a lot.  Lastly, the Veteran stated that in July 2016 when he was doing yard work, he blacked out; however, he did not seek medical attention.  The examiner noted that the Veteran is diabetic, does not have any heart condition, and denied any chest pain or shortness of breath.  Upon physical examination of the Veteran's heart, no abnormalities related to heat syncope were noted.  The examiner ultimately opined that the Veteran does not have a current diagnosis that is related to the in-service episode of heat syncope.  The examiner explained that there are no subsequent medical records indicating ongoing or recurrent symptoms, or continued management for condition to render a current diagnosis.  The Board finds this opinion highly probative as it contains sound reasoning and is based on an accurate factual basis.

In analyzing this claim, the Board recognizes that the Veteran is competent to report his observable symptoms such as fainting and sweating; however, his lay statements are not competent to establish that he has a current disability, as he is not shown to possess medical training necessary to render a medical diagnosis.  Notably, fainting and sweating are symptoms and are not considered a disability for which VA compensation may be awarded.  
The Veteran's lay reports of currently having heat syncope that is related to service are of little probative value and are outweighed by the highly probative December 2016 VA medical examination findings and opinion.  Again, the medical examiner determined that the Veteran does not have a current disability related to the inservice episode of heat syncope.    

There can be no valid claim for service connection in this case, in the absence of competent evidence of a current disability that is related to the single heat syncope episode in service.  

The Veteran has not presented competent evidence showing that he has a current heat syncope disability.  See 38 U.S.C. § 5107 (a) ("[A] claimant has the responsibility to present and support a claim for benefits."); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (holding that it is the claimant's general evidentiary burden to establish all elements of the claim).

Based on the foregoing, this claim must be denied.  In finding so, the Board considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

ORDER

Entitlement to service connection for heat syncope is denied. 



____________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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