Citation Nr: 0617720 Decision Date: 06/16/06 Archive Date: 06/27/06 DOCKET NO. 01-06 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for idiopathic cardiomyopathy to include as secondary to service-connected thyroid hypertrophy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patricia A. Talpins, Associate Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota in which the RO denied the benefit sought on appeal. The appellant, who had active service from April 1969 to September 1969 and February 1991 to April 1991, as well as 20 years of Army Reserve service, appealed that decision to the BVA. Thereafter, the RO referred the case to the Board for appellate review. The Board remanded the case for further development in April 2004. Subsequent to the completion of this development, the case was returned to the Board for further review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. Idiopathic cardiomyopathy was not manifested during service or for many years following service, and has not been established to be causally or etiologically related to service or to service-connected thyroid hypertrophy. CONCLUSION OF LAW Idiopathic cardiomyopathy was not incurred in or aggravated by active service, may not be presumed to have been so incurred, and is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.310 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. The Veterans Claims Assistance Act With respect to the appellant's claim of entitlement to service connection for idiopathic cardiomyopathy, to include as secondary to service-connected thyroid hypertrophy, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2005). A letter dated in April 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The appellant was aware that it was ultimately his responsibility to give VA any evidence pertaining to his claim. The April 2004 letter informed the appellant that additional information or evidence was needed to support his service connection claim; and asked the appellant to send the information to VA. Pelegrini v. Principi, 18 Vet. App. 112 (2004)(Pelegrini II). Although the April 2004 letter was not sent prior to the initial adjudication of the appellant's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and an additional Supplemental Statement of the Case was provided to the appellant in October 2005. The appellant's service medical records and VA treatment records have been obtained, to the extent possible. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. The appellant was also afforded VA examinations in November 1999, July 2001 and July 2003; and a VA medical opinion was obtained in March 2002. 38 C.F.R. § 3.159(c)(4). Since the Board has concluded that the preponderance of the evidence is against the appellant's claim of entitlement to service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). B. Law and Analysis The appellant contends that he is entitled to service connection for idiopathic cardiomyopathy. More specifically, he claims that his service-connected thyroid disorder caused his idiopathic cardiomyopathy, and that his idiopathic cardiomyopathy should be service connected on a secondary basis. See July 1999 claim; January 2001 notice of disagreement; June 2002 statement. While viewing the evidence in the light most favorable to the appellant in this case, the Board finds that the more persuasive and credible evidence does not support the appellant's claim; and as such, the appeal must be denied. Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2005). Service connection may also be granted for certain chronic diseases, such as organic heart disease, when such disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999). In addition, service connection may also be established for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered part of the original condition. Id. The United States Court of Appeals for Veterans Claims has further held that when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation. Allen v. Brown, 7 Vet. App. 439, 446 (1995). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists, and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. When the evidence of record is considered under the laws and regulations as set forth above, the Board is of the opinion that service connection for idiopathic cardiomyopathy is not warranted. In this case, the evidence reveals that the RO granted service connection for thyroid hypertrophy, without other symptoms, in a rating decision dated in April 1970. The appellant's initial service medical records noted that he had a slightly enlarged thyroid without any good symptoms of hyperthyroidism. See service medical records dated in September 1969. A post-service VA examination also did not report symptomatology other than an enlarged thyroid. See February 1970 examination report. While several of the appellant's Army reserve records reflect that he had a diagnosis of hypothyroidism under treatment (See reserve records dated in April 1984 and April 1986; February 1983 report of medical examination; April 1991 report of medical history), the Board also observes that these medical records specifically report that the appellant had a non-toxic (non- hyperthyroid) goiter at that time. See March 1982 to May 1982 reserve medical records. At the time of his 1991 separation from service examination, the appellant was diagnosed with thyroid hypertrophy with cause undetermined. April 1991 examination report. No reference to hyperthyroidism was made. Id. As for the appellant's claim for idiopathic cardiomyopathy, the evidence does not show (nor does the appellant contend) that he developed the disorder in service or within one year of separation from service. In fact, the appellant's service medical records are silent as to any complaints, treatment or diagnosis involving the appellant's heart. His service separation clinical examinations noted that his heart was normal. See August 1969 and April 1991 service separation examinations. In addition, the first medical evidence of atrial fibrillation and a diagnosis of idiopathic cardiomyopathy occurred in May 1999, eight years after the appellant last separated from service. See May 1999 VA medical records. Therefore, service connection for idiopathic cardiomyopathy is not warranted on either a direct or presumptive basis. However, the appellant asserts that service connection should be granted on a secondary basis, in that his idiopathic cardiomyopathy developed secondary to his service-connected thyroid hypertrophy. As will be discussed in more detail below, the Board finds that no competent evidence of record supports the appellant's contention and the appeal for service connection on a secondary basis must also be denied. In this regard, the Board observes that while the appellant's post-service medical records reveal a diagnosis of idiopathic cardiomyopathy, none of these records indicate that the appellant's cardiomyopathy was either caused by or aggravated by his service-connected thyroid disorder. See VA medical records dated from April 1970 to September 2002. In addition, none of the VA examiners who physically examined the appellant or provided a VA opinion at the RO's request opined that the appellant's idiopathic cardiomyopathy was secondary to his thyroid disorder. See VA examination reports dated in November 1999, July 2001, March 2002 and July 2003. In connection with his secondary service connection claim, the appellant was originally examined in November 1999. In the history portion of that examination report, the examiner indicated that the appellant's enlarged thyroid was asymptomatic throughout his adult life; and remained inactive until the appellant was started on a drug called Amiodarone in June 1999 for atrial fibrillation. See November 1999 examination report, p. 2. After performing a physical examination, the appellant was diagnosed, among other things, with Amiodarone induced hyperthyroidism that was controlled. Id., p. 3. The examiner opined that the appellant's thyroid disease was not related to the development of his idiopathic cardiomyopathy, but stated that it transiently aggravated his cardiac status perhaps with the onset of Amiodarone use. Id. However, the examiner noted that the appellant's hyperthyroidism was well controlled and that he believed there was no relationship to the appellant's cardiomyopathy at present. Id. The appellant's representative argues that the November 1999 examiner's use of the word "aggravated" is a sufficient basis upon which to grant service connection in this case. See January 2006 statement from the appellant's representative, p. 2; April 2004 Appellant's Brief, p. 2. Specifically, he contends that the word "aggravated" in this opinion indicates that the appellant's service-connected thyroid condition permanently increased or worsened the appellant's nonservice-connected heart condition. Id.; Allen v. Brown, supra at 445, 448 ("when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation"). However, the Board does not agree with this assessment. An increase in a preexisting (service connected or nonservice-connected) disorder or disease is not the same as a temporary or intermittent flare-up of the preexisting injury or disease. The Board observes that a temporary flare-up of a preexisting injury or disease is not sufficient to be considered "aggravation" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In this case, the November 1999 examiner noted that the appellant's heart problems were transiently aggravated by his thyroid disorder perhaps once the appellant started using the drug Amiodarone. According to the Webster's II New College Dictionary, transiently is defined as "lasting only a short time." See Webster's II New College Dictionary, p. 1171 (2001). As such, the examiner's use of the word "transiently" with the word "aggravated" clearly indicates that the examiner intending to relay the opinion that the appellant may have experienced a temporary or short-term worsening of his cardiac status because of the hyperthyroidism the appellant developed after taking Amiodarone, but not that it was a permanent worsening. Therefore, the examination report does not support the appellant's claim of secondary service connection based upon aggravation. Other VA examination reports contained in the claims file also do not assist the appellant's claim. A July 2001 examination report, completed without review of the claims file and which did not ultimately provide any nexus opinion, diagnosed the appellant with status post right hemithroidectomy for hyperthyroidism; and noted that the appellant's thyroid studies were essentially normal. See July 2001 examination report, p. 3. A March 2002 VA opinion noted that a review of the appellant's post-service medical records revealed that he had a normal TSH of 0.28 on May 10, 1999 and that he was not on any medication for thyroid problems. See March 2002 examination report, p. 1. The examiner reported that the appellant was then diagnosed in an emergency room with atrial flutter on May 24, 1999, at which time he was given Amiodarone to control his arrhythmia. Id. She indicated that Amiodarone was well known to cause thyroid abnormalities, both hypothyroidism and hyperthyroidism. Id., p. 2. Shortly after being given Amiodarone, the appellant was found to be clinically hyperthyroid and was started on another medication. Id., p. 1. The examiner reported that clinical notes dated in July 1999 and August 1999 indicated that the appellant had an enlarged thyroid gland, but had been clinically and biochemically euthyroid until he had been started on Amiodarone. Id., p. 2. Based upon this evidence, the examiner stated that there was no evidence that the appellant was hyperthyroid prior to beginning the drug Amiodarone. Id. Therefore, the appellant's idiopathic cardiomyopathy could not have been caused or aggravated by hyperthyroidism since he was not hyperthyroid prior to taking Amiodarone. In addition, the examiner opined that it was not likely that the appellant's service-connected thyroid enlargement caused his cardiomyopathy. Id. Lastly, the appellant was afforded a VA examination in July 2003, during which he stated that he thought he had hyperthyroidism for many years. See July 2003 examination report, p. 1. The appellant reported that there were times he had episodes of a rapid heart rate lasting up to twenty minutes; and that he never saw a physician during these times. Id., p. 2. The examiner performed a physical examination and reviewed the appellant's claims file. In doing so, he noted that there were many years of TSH values available for the appellant and that they indicated that the appellant had not been hyperthyroid prior to June 1999. Id. The examiner ultimately opined that the appellant did not have a heart abnormality either caused by or aggravated by his thyroid condition. In doing so, he noted that the appellant's atrial arrhythmias and cardiomyopathy were not related to his history of asymptomatic goiter in the service; and that the appellant was clinically and chemically euthyroid at the time he developed atrial fibrillation and flutter and was found to have a cardiomyopathy. Id. Thus, of the four medical opinions contained in the claims file, none support the appellant's claim of entitlement to service connection either on a direct or secondary basis. Nor is such an opinion contained within the appellant's numerous VA medical records. As such, the Board finds that the VA opinions of record are not only persuasive and credible, but are also uncontroverted. Absent a medical nexus opinion linking the appellant's idiopathic cardiomyopathy to service or his service-connected thyroid disorder, the Board cannot find that service connection is warranted. In making this decision, the Board acknowledges the appellant's assertions that his VA medical records show a thirty year history of abnormal thyroid functions; and that overall his VA records show a history of irregular thyroid tests that could be the cause of his atrial fibrillation. See June 202 statement, pgs. 1-2. The Board is also aware of the appellant's references to medical records in which it was indicated that his atrial flutters were not caused by the drug Amiodarone. Id., p. 2. However, the basis of the appellant's claim is that he had hyperthyroidism prior to his taking Amiodarone; and that hyperthyroidism caused his idiopathic cardiomyopathy. Yet, the appellant's medical records indicate that he was either hypothyroid or euthyroid prior to May 1999, at which time he developed hyperthyroidism secondary to taking of Amiodarone. See VA medical records dated in July 1999 ("Started on amiodarone for A fib ? hyperthyroidism"); August 1999 ("Amio hypothyroid") ("Developed hyperthyroidism 2nd to amiodarone Rx") ("Hyperthyroidism secondary to Amiodarone administration for