Citation Nr: 1422903 Decision Date: 05/20/14 Archive Date: 05/29/14 DOCKET NO. 04-27 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for hyperparathyroidism, to include as secondary to service-connected disability. 3. Entitlement to service connection for osteoporosis, to include as secondary to service-connected disability. 4. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The Veteran had active military service from July 1962 to July 1966. These matters come before the Board of Veterans' Appeals (Board) on appeal of August 2004 and June 2008 rating decisions of the Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. By way of history, the issue of entitlement to a TDIU was previously denied by the Board in May 2006. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court). In February 2008, the Court granted a joint motion to remand the issue back to the Board. The issue has been subsequently remanded by the Board in November 2008, July 2011, December 2012, and June 2013. In June 2013, the Board denied the Veteran's claims for entitlement to higher ratings for service-connected sarcoidosis and for service-connected sleep apnea, denied entitlement to separate disability ratings for co-existing respiratory conditions of sarcoidosis and sleep apnea, and denied entitlement to an effective date prior to April 4, 2008 for the grant of service connection for sleep apnea to include the assigned 50 percent rating. The Board otherwise reopened and remanded the Veteran's claim for service connection for a heart disability and also remanded the claims for service connection for hyperparathyroidism and for osteoporosis, and the claim for a TDIU. Following the development requested, the RO issued a supplemental statement of the case (SSOC) in August 2013 continuing the denial of the Veteran's claims. The appeal has since been returned to the Board for further appellate review. (The issues of service connection for hyperparathyroidism and for osteoporosis, as well as the claim for a TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).) FINDINGS OF FACT 1. The Veteran did not have active military service in the Republic of Vietnam during the Vietnam War. 2. A heart disability was not shown in service, and there is no competent evidence suggesting a nexus between any heart disability and the Veteran's period of service; a heart disability was not exhibited within the first post-service year. CONCLUSION OF LAW A heart disability was not incurred in, or aggravated by, active duty service nor may a heart disability be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist In a January 2008 notice letter, the RO notified the Veteran of information and evidence necessary to substantiate his claim on appeal for service connection for a heart disability. The Veteran was also notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. In that letter, the Veteran was also informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). VA has also done everything reasonably possible to assist the Veteran with respect to his claims on appeal in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The Veteran's service treatment records (STRs) are associated with the claims folders as are his VA treatment records. The Board also notes that the Veteran has been provided a VA medical examination in August 2013 with respect to his claim. This examination provides sufficient evidence by which to consider the Veteran's claim for service connection for a heart disability. The Board is aware, as per a September 2013 statement, that an argument has been raised that the VA examiner in August 2013 did not consider the Veteran's statements. The Board notes that the examiner interviewed and examined the Veteran. There is nothing to indicate that the examiner did not consider the Veteran's statements regarding the history of his heart disability. Furthermore, the Veteran's medical history is well documented in the claims folders since his separation from active service. As such, the Board finds the August 2013 VA examiner's opinion to be sufficient. Therefore, there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided below. II. Analysis The Board has reviewed the Veteran's physical claims folders and the record maintained in the Virtual VA paperless claims processing system. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). For chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), service connection may also be established by showing continuity of symptoms, which requires a claimant to demonstrate (1) that a condition was "noted" during service; (2) evidence of post service continuity of the same symptoms; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptoms. 38 C.F.R. § 3.303(b) (2013); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (only those chronic diseases listed in 38 C.F.R. § 3.309 are subject to service connection by continuity of symptoms described in 38 C.F.R. § 3.303(b)). The Veteran's STRs reflect complaints of chest pain. A March 1966 electrocardiogram (EKG) revealed elevated S-T segments associated with the anterior lateral pericardium. An April 1966 chest X-ray revealed apparent cardiac enlargement. Later in April 1966, a fluoroscopy of the cardiac and vascular structures revealed a diffuse mildly enlarged heart without specific chamber involvement. A June 1966 report of separation medical examination did not reflect a finding or diagnosis of a heart disability. Post service, the Veteran was examined for VA purposes in July 1968. In particular, his heart, at percussion, reflected no evidence of enlargement. On diagnostic testing, an EKG suggested left ventricular hypertrophy. Chest X-ray revealed a normal size heart. The examiner's impression included left ventricular hypertrophy. A VAMC Oklahoma City hospital summary, dated in August 1968, noted that an EKG revealed RST and T-wave changes which were compatible with a localized myocardial lesion. Following discussion with a cardiologist, it was felt that the ST and T-wave changes were probably normal for the Veteran. In a November 1968 rating decision, the RO denied the Veteran's claim for service connection for a heart disability. The RO noted the lack of evidence of disability. Of note, subsequent to the November 1968 rating decision, a November 1983 echocardiogram was reported normal. A January 1984 Gallium scan revealed no abnormal areas of the heart. A nuclear ventriculogram (showing the heart's chambers) was also noted as being normal. The Board also notes that a February 1984 VA treatment record noted a diagnosis of cardiomyopathy of questionable etiology. A report of April 1987 VA examination identified a September 1986 chest X-ray had revealed mild cardiomyopathy. Subsequent chest X-rays have noted the Veteran's heart to be normal and to have been enlarged depending on the study. Furthermore, an October 2006 myocardial perfusion scan revealed normal wall motion with normal ejection fraction and normal volumes. A computed tomography (CT) scan in August 2007 revealed the Veteran's heart to normal in appearance. In January 2008, the Veteran sought to reopen his claim. At that time, the medical evidence reflected that the Veteran suffered from coronary artery disease (CAD) based on diagnostic test findings. As noted above, the Board reopened the Veteran's claim in its June 2013 decision. In light of the Veteran's complaints in service and the post-service evidence, the Veteran underwent a VA examination in August 2013. The examiner noted that the Veteran's claims folder had been reviewed and he discussed and commented on the Veteran's service and post-service medical history. The examiner diagnosed the Veteran with CAD and opined that the disability was less likely than not to have had its clinical onset in service or to be related to service. The examiner explained that the Veteran's CAD was discovered in 2006 following a stress test and confirmed by angiogram in 2007. Otherwise, there was no evidence of the Veteran having CAD in service or within one year of discharge from service. The examiner opined that the Veteran's atypical chest pains suffered in service were likely to be a result of thoracic sarcoidosis and not CAD. The Board finds the August 2013 VA examiner's medical opinion to be persuasive. The opinion provided is based on the examiner's review of the claims folders, an interview with the Veteran, his professional training and expertise, as well as an examination. The examiner provided the rationale for his opinion and there is not any medical opinion evidence associated with the claims folders that refutes the conclusions of the examiner. Additionally, the examiner commented on the lack of any manifestation of CAD within one-year of the Veteran's separation from service. Also, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this instance-whether the Veteran has a heart disability that was incurred in or aggravated by service, or whether CAD was diagnosed within the first post-service year, falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). Therefore, the competent evidence does not support that the Veteran has a heart disability that had its clinical onset in service or is related to service. Additionally, service connection is not warranted for a heart disability on a presumptive basis as the Veteran's disability was not shown to have manifested in the first post-service year. See 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Furthermore, the Veteran is not shown to have service in the Republic of Vietnam. As such, there is no presumed exposure to herbicide agents and a presumption of service connection for CAD. Therefore, the Board finds that the Veteran does not have a heart disability that was incurred in or aggravated by service, or within the first post-service year. Thus, service connection is not warranted for a heart disability. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. ORDER Service connection for a heart disability is denied. REMAND On further review of the claims folders, the Board finds additional development with regard to the claims for service connection for hyperparathyroidism and for osteoporosis is necessary prior to consideration of these claims on appeal. As noted on the title page, the Veteran seeks service connection for hyperparathyroidism and for osteoporosis both on a direct basis and as secondary to service-connected disability. In particular, the Veteran has alleged that the disabilities are proximately due to or aggravated by his service-connected sarcoidosis, to include steroids he took to treat his sarcoidosis. Service connection may also be granted on a secondary basis for a disability that is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2013). In the present case, the Veteran was provided a VA examination in April 2008. The examiner discussed the Veteran's medical history and that the Veteran believed steroids he took for his sarcoidosis had caused his hyperparathyroidism and osteoporosis. The examiner noted that the Veteran had no symptoms of hyperparathyroidism at the time of examination, he was being treated for osteopenia with Fosamax, and there were no symptoms of osteoporosis except for an abnormal bone mineral density test. Also, the examiner commented that the Veteran denied any signs or symptoms of a parathyroid condition. The examiner diagnosed primary hyperparathyroidism secondary to parathyroid adenoma status post excision of left parathyroid adenoma in March 2007, and also osteopenia. She commented that the Veteran's sarcoidosis had been in remission for several years and that he had been off steroids for many years. Furthermore, the above noted CT scan in August 2007 of the Veteran's chest showed no findings to specify or indicate sarcoidosis. The examiner concluded that there was no relationship between the Veteran's hyperparathyroidism or osteoporosis and the service-connected sarcoidosis, "which has been in remission for over 20 years." The Board notes that the examiner's opinion did not include any comment on whether the service-connected sarcoidosis aggravated the Veteran's hyperparathyroidism and osteoporosis. Based on the medical evidence of record, it would appear that no aggravation has taken place. Of note, a report of June 1993 VA examination identified the Veteran's sarcoidosis as being inactive and not requiring steroid treatment for 10 years. An October 2002 VA treatment note also noted the Veteran's sarcoidosis to be inactive. These findings are consistent with the April 2008 examiner's report that the Veteran's sarcoidosis was in remission. Furthermore, the evidence since April 2008 does not reflect treatment for sarcoidosis. Of note, VA examinations in January 2013 also reflect the Veteran's sarcoidosis not to be active or symptomatic. Otherwise, the first documented evidence of the Veteran's treatment for hyperparathyroidism and osteoporosis/osteopenia is not until 2002. The onset of the Veteran's hyperparathyroidism and osteoporosis/osteopenia, thus, appears to have occurred a number of years after the Veteran's sarcoidosis went into remission or became inactive. It would not appear that an inactive condition, such as sarcoidosis, to aggravate disabilities first shown years later. However, the Board must rely on independent medical evidence to support its findings and not its own unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, notwithstanding the apparent evidentiary support for the Veteran's disabilities not being aggravated by his service-connected sarcoidosis, the Board concludes that a medical opinion should be obtained to determining whether the Veteran's hyperparathyroidism and osteoporosis/osteopenia have been aggravated (permanent worsening of the underlying condition) by the service-connected sarcoidosis. The RO's decision on the claims being developed, above, could have a bearing on the Veteran's claim for a TDIU; thus, they are inextricably intertwined. Consideration of the merits of the Veteran's claim for a TDIU is also deferred pending completion of the requested development. Accordingly, these claims are REMANDED for the following action: (For the benefit of the examiner providing the addendum VA medical opinion, as discussed below in paragraph #2, the (AOJ) should not remove the tabs in the claims folders.) 1. Obtain the Veteran's most recent VA treatment records dated from August 2013 and associated with the claims folders. 2. After completion of the above, the claims folders should be referred to an appropriate VA examiner for a medical opinion based on a review of the evidence of record. A copy of this remand must be made available to the examiner for review in connection with the requested opinion. The examiner's review of the claims folders should include the Veteran's VA treatment records and service treatment records, a report of June 1993 VA examination (noting inactive sarcoidosis) (Volume #1 of the claims folders), and a report of April 2008 VA examination (noting the lack of a relationship between the Veteran's sarcoidosis and his hyperparathyroidism and his osteoporosis) (Volume #6 of the claims folders), and a January 2013 DBQ (noting sarcoidosis not to be currently active or symptomatic (Green Temporary File). The examiner should also consider the tabbed medical treatise evidence submitted by the Veteran concerning hypercalcemia, and that pertaining to sarcoidosis and hyperparathyroidism (Volume #7 of the claims folders). The examiner should provide answers to the following questions: a) Whether it at least as likely as not (a 50% or higher degree of probability) that any diagnosed hyperparathyroidism or osteoporosis/osteopenia had its clinical onset during service or is otherwise related to service. b) Whether it is at least as likely as not (a 50% or higher degree of probability), that hyperparathyroidism or osteoporosis/osteopenia was caused or aggravated (permanently worsened beyond its normal progression) by the service-connected sarcoidosis. The medical basis for any conclusion reached should be thoroughly explained, to include an explanation for a finding that the examiner is unable to render an opinion without resorting to speculation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If aggravation is found, the examiner should report the baseline level of severity of the pathology prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. If some of the increase in severity of the pathology is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. See generally 38 C.F.R. § 3.310(b) (2013). (NOTE: The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to VA's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).) 3. After the above has been completed, undertake any additional evidentiary development deemed appropriate. Thereafter, re-adjudicate the claims remaining on appeal. If any benefit sought is denied, the Veteran and his attorney must be provided an SSOC and given an opportunity to respond before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs