Citation Nr: 1105347 Decision Date: 02/09/11 Archive Date: 02/18/11 DOCKET NO. 08-15 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from March 1986 to June 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In December 2010, the Veteran testified before the undersigned at a Board Central Office hearing in Washington DC. At that time, he submitted additional evidence and waived initial RO jurisdiction over that evidence. The Board notes that during the pendency of the Veteran's appeal, the United States Court of Appeals for Veterans Claims (Court) held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009). Therefore, the issue of service connection for coronary artery disease has been recharacterized on the front page of this decision as service connection for a heart disability. FINDING OF FACT A heart disability, characterized as aortic insufficiency, had its onset in service. CONCLUSION OF LAW A heart disability characterized as aortic insufficiency was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection may be granted for 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, 3.304. In addition, valvular heart disease will be presumed to have been incurred in or aggravated by service if it had become manifest to a degree of 10 percent or more within one year of a veteran's separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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. Further, VA regulation provides that, with chronic disease shown as such in service (or within an applicable presumptive period under section 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of an evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In addition, service connection may be granted for any disease diagnosed after discharge, when all 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, the evidence must show: (1) the existence of a present disability; (2) inservice incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during the service." Shedden v. Principi, 381 F. 3d 1163, 1166-67 (Fed. Cir. 2004). There must be competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the inservice injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1994). The Court has consistently held that, under the law cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit), which has stated, "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). The Veteran had active service from March 1986 to June 2006. His service treatment records reflect that in March 2006, he was examined. At that time, it was noted that he had mild aortic insufficiency. The physician indicated that the Veteran would eventually require aortic valve replacement, secondary to eventual progression of the aortic insufficiency and it was recommended that echocardiograms be repeated every 2-5 years. Post-service, the Veteran was afforded a VA examination in August 2006. At that time, the Veteran reported that an inservice echocardiogram showed aortic valve disease. He indicated that he was also diagnosed with coronary artery disease. However, a subsequent stress thallium test and echocardiogram were normal. Current VA examination did not reveal coronary artery disease. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (without a current diagnosis, a claim for entitlement to service connection cannot be sustained). Thereafter, private records continued to show the presence of aortic regurgitation/aortic insufficiency, which is the current diagnosis. In addition, a recent September 2010 echocardiogram was abnormal. Although his current findings are apparently only mild in their degree of impairment, that does not negate the diagnosis. Accordingly, as aortic insufficiency had its onset during service, service connection is warranted on a direct basis for that heart disability. The Board recognizes that the Veteran has also claimed that this disability is due to sleep apnea; however, since direct service connection is being granted, it is unnecessary to consider secondary service connection. ORDER Service connection for a heart disability, characterized as aortic insufficiency, is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs