Citation Nr: 1031328 Decision Date: 08/19/10 Archive Date: 08/24/10 DOCKET NO. 06-37 760 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a heart condition claimed as abnormal electrocardiogram (EKG). 2. Entitlement to service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily B. Joyner, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1985. He also had Reserve service on and off from August 1985 to June 2004. In 1993 he had 39 days of inactive duty training and 13 days of active duty training points. Thereafter, he was recalled to active duty and served from June 17, 2004 to August 13, 2004. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee which denied the claims on appeal. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the Central Office in June 2007. A transcript of this hearing is associated with the claims file. When the case was last before the Board in September 2007, the Board granted service connection for a lumbar spine disorder and remanded the claims for entitlement to service connection for hypertension, a heart disorder claimed as abnormal EKG, sinus disorder, right ankle disorder and left ankle/foot disorder. Thereafter, in a January 2010 rating decision, the RO granted service connection for hypertension, chronic sinusitis, and a left ankle and foot condition. As such, the only issues currently before the Board are the two issues listed on the title page of this decision. FINDINGS OF FACT 1. A heart condition was not present during service or within one year of discharge therefrom, and any currently diagnosed heart disorder is not etiologically related to active service. 2. The competent evidence of record reflects that it is at least as likely as not that the Veteran's right ankle disorder was incurred during the Veteran's active duty for training in 1993. CONCLUSIONS OF LAW 1. A heart disorder was not incurred or aggravated during active service, and the incurrence or aggravation of a heart disorder during such service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). 2. Resolving reasonable doubt in the Veteran's favor, a right ankle disorder was incurred during active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Board notes that in letters dated in January 2005, January 2007, and March 2008, the RO and the Appeals Management Center (AMC) provided notice to the Veteran regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and the types of evidence that will be obtained by VA. Additionally, the January 2007 notice letter informed the Veteran as to disability ratings and effective dates. Because the notice pursuant to Dingess came after the initial adjudication of the claim, the timing of the notice did not comply with the requirement that the notice must precede the adjudication. The timing deficiency was remedied by the fact that the Veteran's claims were readjudicated by the AMC in March 2010, after proper VCAA notice was provided and after the Veteran had an opportunity to respond. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board concludes that the duty to notify has been met. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and VA examination reports, and private medical evidence. Also of record and considered in connection with the appeal are various written statements submitted by the Veteran and his representative. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). In this regard, the Board is satisfied as to compliance with the instructions from its September 2007 remand. Specifically, the RO was instructed to 1) ask the Veteran to identify all health care providers who have treated him for his disabilities at issue and obtain records from the identified providers; 2) provide the Veteran with VA examinations to determine the extent, nature and etiologies of the disabilities; 3) and verify various periods of service. The Board finds that the RO has complied with these instructions and that the VA examination reports substantially complies with the Board's September 2007 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process, identifying pertinent medical evidence and submitting evidence. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Governing Laws and Regulations for Service Connection Claims Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for an injury, the Court generally requires a veteran to show (1) medical evidence of a current disability, (2) medical or lay evidence of in- service incurrence or aggravation of an injury, and (3) medical evidence of a nexus between the claimed in-service injury and the present disability. Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007). In cases where the veteran cannot establish some of these elements, a veteran can instead establish continuity of symptomatology. 38 C.F.R. § 3.303(b); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). To establish continuity of symptomatology, the Veterans Court requires a veteran to show "(1) that a condition was 'noted' during service, (2) evidence of postservice continuity of the same symptomatology, and (3) medical or lay evidence of a nexus between the present disability and the postservice symptomatology." Barr, 21 Vet. App. at 307. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. "Status as a 'veteran' is one of the five elements of a claim for service- connection benefits." Dingess v. Nicholson 19 Vet. App. 473, 484 (2006). A "veteran" is a person who served in active military, naval, or air service. 38 U.S.C.A. § 101(2) (West 2002). Pursuant to 38 U.S.C.A. § 101(24), " 'active military, naval, or air service' includes active duty, 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, and any period of inactive duty training [INACDUTRA] during which the individual concerned was disabled or died from an injury incurred in or aggravated in line of duty." 38 U.S.C.A. § 101(24). Put another way, service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or for injury incurred during inactive duty training. Veterans are presumed to be in sound medical condition at the time of entry into service except for defects actually noted when examined for entry into service. This presumption of soundness can be rebutted by clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. A preexisting disease or injury will be considered to have been aggravated by active service where there is an increase in disability during such service, but this presumption of aggravation can be rebutted by clear and unmistakable evidence that the disability was not aggravated by active service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In this regard, service connection can be established for a disability which preexisted service, but was permanently aggravated thereby. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that the correct standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the appellant's disability existed prior to service and (2) that the preexisting disability was not aggravated during service. Generally, a preexisting injury or disease will be considered to have been aggravated by active service where there was an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease; however, aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. See also VAOPGCPREC 3-2003. Moreover, where a veteran served continuously for ninety days or more during a period of war, or during peacetime service after December 31, 1946, and valvular heart disease becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). I. Heart Condition Claimed as Abnormal EKG The Veteran claims that he is entitled to service connection for a heart disability because he had two bad EKGs in service. The first abnormal EKG was in April 2001 and the second abnormal EKG was in May 2004. A review of the service treatment records from the Veteran's first period of service reflect that in November 1984 while being treated for a viral upper respiratory infection he was noted to have tachycardia on examination of the heart. The service treatment records do not reflect that he was diagnosed with any heart disorder during his first period of service. Between his first period and second period of active service, in May 2004, an EKG revealed sinus bradycardia. A past history of bradycardia was also noted. The report of a September 2008 VA examination report notes that in 2004 during the Veteran's National Guard service, a pre- deployment physical examination revealed that EKG results were abnormal. The examiner opined that the EKG in question revealed only sinus bradycardia. Another EKG revealed only a non-specific ST segment abnormality. The Veteran was entirely asymptomatic. However, because of this and his other conditions, he was not deployed with his unit. He was not referred to a cardiac specialist and he had no cardiac testing performed. He received no treatment for this EKG finding. He occasionally has an episode of dizziness lasting 30 minutes. He denied syncope, chest pain, palpitations, shortness of breath, and dyspnea. Cardiac examination was normal. A November 2007 EKG was normal. An October 2008 EKG revealed sinus bradycardia, otherwise normal. The diagnosis was sinus bradycardia, asymptomatic, without effects on daily activities. A February 2009 addendum to the September 2008 VA examination report notes that the Veteran does not have any significant heart disease. The examiner opined that the Veteran has mild, asymptomatic, intermittent, sinus bradycardia, which is not a pathophysiological condition or diagnosis. Instead, it is a normal physiological variation and has not been shown to be responsible for any symptoms on the testing performed. Testing has not revealed any SA Node disease that could be responsible for the sinus bradycardia. There was no prolonged cardiac rhythm pauses on testing. The Veteran is on medications for his service-connected conditions that could be responsible for his sinus pauses. There is no aggravation of this condition due to military service. The examiner further stated that the Veteran has very mild hypertensive heart disease that is only manifested by mild left ventricular hypertrophy that manifests itself on an echocardiogram. There are no clinical symptoms from this condition, nor is there any functional disability due to this condition. The condition is not physiologically important; it is a mild laboratory abnormality only. The baseline heart disease without regard to aggravation by military service cannot be determined by available records. It is the examiner's opinion that the amount of aggravation of this condition by military service is trivial. The Veteran has no coronary artery disease, valvular heart disease, pericardial heart disease, low output congestive heart failure, high output congestive heart failure, cardiomyopathy, congenital or acquired cardiac shunts, obstructive hypertrophic heart disease, rheumatic heart disease, other heart disease (due to sexually transmitted disease (STD) or parasites), or pulmonary artery disease. After reviewing the evidence of record, the Board finds that service connection is not warranted for a heart disorder claimed as abnormal EKG. In this regard, the Board notes that no heart disorder was diagnosed during any period of service. The "abnormal" EKGs actually displayed no evidence of any heart disease, and as such, no diagnosis was made. In addition, no diagnosis of any heart disorder was made in the year following the first period of service or the second period of service. Moreover, there is no evidence showing that any currently diagnosed heart disorder is etiologically related to any period of service, or that any currently diagnosed heart disorder was aggravated during the Veteran's second period of active service. Specifically, the Veteran underwent a thorough VA cardiac examination in September 2008 in order to answer these very questions. The report of this examination is very clear. In sum, the Veteran currently has no symptomatic heart disorder, and any heart condition that he has, namely sinus bradycardia, is unrelated to any period of active service, to include based upon aggravation. (The Veteran is already compensated for his service-connected hypertension.) Notably, the February 2009 VA examination addendum clearly lists the heart diseases that the Veteran does not have; he does not have coronary artery disease, valvular heart disease, pericardial heart disease, low output congestive heart failure, high output congestive heart failure, cardiomyopathy, congenital or acquired cardiac shunts, obstructive hypertrophic heart disease, rheumatic heart disease, other heart disease (from an STD or a parasite), or pulmonary artery disease. Instead, he has mild, asymptomatic, intermittent sinus bradycardia, which is not a pathophysiological condition or diagnosis; it is merely a normal physiological variation that does not cause any symptoms. The examiner stated that this condition causes no symptoms or functional disability. It is merely a laboratory abnormality that is not etiologically related to active service, and any aggravation of such condition by service is trivial. In essence, the evidence linking a heart disability to service is limited to the Veteran's own statements. Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Although the Veteran is competent to report that he has experienced heart symptoms since military service, the evidence fails to support his recollections. As noted above, service treatment records make no mention of a heart disorder. Further, no heart disorders were evident when he was examined for service separation for any period of service. Sinus bradycardia is not a pathophysiological condition or diagnosis, and the only medical opinion on point indicates that it is not caused by or a result of service, nor was it aggravated by military service. In this regard, the presumption of in-service incurrence is not for application. 38 U.S.C.A. §§ 1101, 1112(a)(1); 38 C.F.R. §§ 3.307(a)(3), 3.309. As such, service connection is not in order for a heart condition. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision. II. Right Ankle Disorder The Veteran contends that he is entitled to service connection for a right ankle disorder because he hurt his right ankle while on active duty for training with the National Guard in July 1993. He claims that he has had problems with the ankle ever since then. He also testified that he reinjured the ankle when he was recalled to active duty in 2004. A review of the service treatment records from the Veteran's first period of service reflect that in October 1981 the Veteran was treated for complaints of pain in the right foot. The service treatment records do not reflect that he was diagnosed with any right ankle disorder during his first period of service. Records after his second period of active service from June 2004 to August 2004 reflect that the Veteran was treated in March 2007 for problems with both ankles. X-rays showed degenerative changes in both feet and ankles. A June 2007 VA podiatry note indicates that the Veteran complained of pain in the right ankle after walking all day. The Veteran indicated that the right ankle had been painful for five years. The impression was degenerative joint disease of the right ankle, talar fracture, and hypertrophied navicular. A September 2008 VA examination report notes that the Veteran sprained his right ankle playing basketball while on two weeks active duty. He had pain and reduced range of motion. No fracture was revealed by X-rays. When he returned home, he went to his primary care physician and received an ace bandage, pain medications, nonsteroidal anti-inflammatories, and was told to rest. He got worse. He then sought treatment through VA and received orthotic inserts for his shoes, an ankle brace, and pain medications. This did not help. A June 2007 X-ray revealed degenerative/traumatic arthritis, a talar fracture, and navicular hypertrophy of the right ankle. He underwent corrective surgery for this condition in December 2007. His pain improved. The examiner opined that the degenerative/traumatic arthritis and talar fracture of the right ankle was not caused by or a result of the Veteran's first period of active service because the service treatment records from that period of service do not reflect any right ankle injury. There is also no evidence showing that the right ankle injury occurred in the first year after discharge from the first period of service. There is no documented evidence that the right ankle injury occurred or was aggravated by the second period of active military service between June 17, 2004 and August 13, 2004. The examiner noted that by the Veteran's own verbal account, his initial right ankle injury occurred while on two weeks active military duty training with the National Guard in 1993. Although the examiner could not find documentation of this injury, the examiner felt that the story is believable and credible. The Veteran's service personnel records reflect that he served on active duty for training for 13 days during 1993. He also served on inactive duty training. In light of this information and the VA examiner's opinion that the Veteran's version of his right ankle injury during such service is credible and believable, the Board finds that the evidence is in favor of the Veteran's claim for service connection for a right ankle disorder. In this regard, the Board acknowledges the Court's recent holdings affirming the ability of lay statements to establish the occurrence of an in-service injury even in the absence of contemporaneous documentation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009), (a lay statement can be sufficient to show that a disability began in service); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (VA cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence of the in- service event); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Based on the above, and resolving all doubt in the Veteran's favor, service connection for a right ankle disorder is granted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a heart condition claimed as abnormal EKG is denied. Service connection for a right ankle disorder is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs