Citation Nr: 1122139 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 09-04 935 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for intermittent atrial fibrillation including as secondary to a service-connected anxiety disorder. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from March 1970 to April 1976 and on active duty in the Army National Guard from August 2004 to September 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board sitting at the RO in April 2001. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran's atrial fibrillation disorder pre-existed active duty service from 2004 to 2005. 2. There was no increase in disability during active duty service from 2004 to 2005. 3. The Veteran's atrial fibrillation was aggravated beyond the normal progression of the disorder by a service connected anxiety disorder related in part to readjustment to civilian life following combat service. CONCLUSION OF LAW The criteria for service connection for atrial fibrillation have been met. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The Veteran served as a U.S. Navy electrician's mate during his first period of active service. In 1981, he enlisted in the Wisconsin Army National Guard, was commissioned, and served on active duty in 2004 and 2005 in Southwest Asia. He retired from National Guard service in 2006 at the rank of Lieutenant Colonel. The Veteran received the Bronze Star Medal and Combat Infantryman's Badge for service with an Afghanistan Army advisory group in Kandahar. He contends that his intermittent atrial fibrillation and residuals of ablation and placement of a pacemaker are related to his period of active service in Southwest Asia or is secondary to a service-connected anxiety disorder. Service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for a disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of 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); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted 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 established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). At the time of the service entrance examination, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The appellant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Crowe v. Brown, 7 Vet. App. 238 (1994) (supporting medical evidence is needed to establish the presence of a preexisting condition). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding 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(a). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence in the record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). U.S. Navy service treatment records are silent for any symptoms, diagnoses, or treatment of a heart disorder. A National Guard enlistment physical examination was also silent for any reported or observed symptoms of a heart disorder. In National Guard and officer candidate and commissioning physical examinations in July and September 1982, the Veteran reported experiencing occasional episodes of heart palpitations or fluttering associated with consuming too much coffee. The examining physician diagnosed paroxysmal atrial tachycardia and determined that the disorder was not serious and not disqualifying. Similar symptoms and determinations were made on physical examinations in 1990, 1994, and 1999. In August 2001, the Veteran sought emergency private treatment for an episode of rapid heartbeat while jogging. The physician diagnosed atrial fibrillation and noted that the response was "controlled." In September 2001, the Veteran's attending physician noted that the Veteran denied any recent palpitations but reported an episode in August 2000 that resolved after a brief hospitalization and use of beta blocker medication. The physician added an anti-coagulant medication and referred the Veteran to a specialist for consideration of an ablation procedure. In a March 2002 health questionnaire, the Veteran reported the diagnosis and that the disorder was controlled with medication. The State Surgeon initially considered that the disorder caused the Veteran to be unfit for continued National Guard duty. In correspondence to the State Surgeon in April 2002, the Veteran's attending physician noted that the Veteran had a history of three atrial fibrillation episodes, the longest lasting 16 hours. The first two episodes resolved spontaneously and the third required cardio conversion. There were no symptoms of chest pain, lightheadedness, or syncope. Cardiovascular testing showed an excellent exercise capacity and no coronary artery disease or valvular defect. The physician concluded that the episodes were controlled with medication, were not life threatening, and would not interfere with performance of military duty. Private treatment records showed that the Veteran experienced an additional episode in April 2004. The Veteran assumed active duty status and deployed to Afghanistan from August 2004 to July 2005. In correspondence in November 2007, the Army deputy division commander noted that the Veteran had been assigned as the executive officer of a regional military advisory command in southern Afghanistan and was responsible for administrative, medical, personnel, pay, and mortuary affairs for Coalition and Afghan forces in the region. The deputy commander noted that the work required long hours under stressful conditions including the threat of improvised explosive devices, mortar and small arms attack, and kidnapping. In June 2005 post deployment health questionnaire, the Veteran noted that he had not been in direct combat, had not sought sick call treatment, and was not under treatment for stress at that time. However, he did report viewing dead coalition and enemy soldiers and occasionally feeling depressed. He did not report any episodes of atrial fibrillation during the deployment. In November 2005, the Veteran's private attending physician noted that the Veteran reported recurring episodes every two months lasting 12 to 18 hours with the most recent lasting 36 hours. The Veteran continued to use medication and did not consume much caffeine. There were no chest pains or shortness of breath and he was not presyncopal. He reported that he exercised six times per week for 30 to 60 minutes. In October 2006, a private cardiovascular specialist (later identified as an electrophysiologist and assistant professor of medicine) noted that the frequency of the episodes increased since August 2006. The episodes interfered with sleep and resulted in fatigue. In March 2007, the specialist noted the frequency of episodes had increased to every month. A pacemaker was implanted in June 2007. The same month, the Veteran started receiving VA mental health treatment. He reported having difficulty adjusting to civilian life with symptoms of irritability, avoidance behavior, and lack of tolerance and overreaction to minor problems at work. Clinicians noted that the Veteran expressed the belief that his perceived stress was affecting his atrial fibrillation disorder. In February 2008, a VA physician noted a review of the claims file and the nine-year history of episodes of atrial fibrillation about four times per year lasting 8 to 16 hours. The physician noted that the episodes increased to weekly in 2006 and that he underwent ablation and installation of a pacemaker in May 2007. The Veteran reported currently experiencing eight episodes per month lasting minutes to one hour. He did not experience shortness of breath and could run many miles per day with no difficulty. An electrocardiogram in April 2007 was normal. The physician concluded that the intermittent atrial fibrillation, now controlled following ablation and pacemaker placement, was less likely than not caused by an anxiety disorder but rather caused by a defect in the pacemaker cells of the heart. The physician did not comment on whether the disorder, noted prior to active service, underwent an increase in disability caused by stressful service or rather was a normal progression of the disorder. The same month, a VA doctoral level psychologist (not a physician) performed a mental health examination and noted the nature of the Veteran's active duty service in Southwest Asia and his difficulties adjusting to civilian life as a manager for the State Social Security Disability system. The psychologist noted the Veteran's reports of atrial fibrillation episodes prior to active duty that increased significantly after service. The psychologist diagnosed an anxiety disorder with subsyndromal posttraumatic stress disorder related to the Veteran's experiences in Afghanistan. The psychologist further concluded that the heart disorder was at least as likely as not aggravated beyond the normal progression by the anxiety disorder because of the extreme level of stress in service and subsequent increase in symptoms after that service. In correspondence in February 2008, the Veteran's supervisor at the State Social Security office noted the Veteran's changed behavioral symptoms after his active service and that the Veteran expressed the desire to retire from his civilian employment. The supervisor did not comment on the frequency or impact of episodes of atrial fibrillation on the Veteran's occupational function. In a February 2008 statement, the Veteran noted that during his deployment he did not seek medical attention for atrial fibrillation episodes that continued to occur every two months for 8-16 hours at a time. He was provided control medication by the Army. He described his stressful duties and events including combat action and his anxiety and stress particularly at his civilian occupation upon return from deployment. He noted that after seven or more years of a static frequency of episodes, the frequency increased in the spring of 2007 so that he was experiencing fibrillation 50 percent of the time with symptoms of fatigue. In correspondence in March 2008, the private electrophysiologist noted that he had provided treatment since 2006 when the Veteran's disorder became severe and noted that the Veteran was now doing well but not free of the disorder following ablation and pacemaker implant. The specialist noted that the causes of the disorder were complex and may involve the nervous system of the heart but that stress played a role in many forms of heart disease and can trigger atrial fibrillation, although the disorder also occurred in patients without stress. The specialist noted that the temporal correlation between the Veteran's exacerbation of atrial fibrillation symptoms and his return from deployment and his difficulties adjusting to civilian life likely accounted for his cardiac problems. In December 2009, a VA internal medicine specialist (and associate professor of medicine at the same university as the electrophysiologist) noted a review of the claims file but did not examine the Veteran. The internal medicine specialist concluded that the Veteran's atrial fibrillation disorder was not aggravated by the anxiety disorder. The specialist noted that anxiety disorder can cause transient sinus tachycardia but are not known to cause an individual to convert from a sinus rhythm for an atrial fibrillation rhythm. The specialist also noted that the natural progression of intermittent atrial fibrillation almost always results in more frequent episodes leading to persistent fibrillation. In an April 2011 Board hearing, the Veteran contended that the opinion of the electrophysiologist should be afforded greater probative weight because he is a specialist in the aspects of cardiology relevant to atrial fibrillation and was his treating physician for several years. The Veteran noted that for four to five years starting in 1999 he experienced atrial fibrillation episodes every two months for durations of less than one day. Then after one year of active duty and one year of readjustment, the frequency increased to episodes on a daily or weekly basis expanding to 30 to 50 percent of the time and required surgical intervention with ablation and a pacemaker. As a preliminary matter, the Board concludes that the Veteran's atrial fibrillation pre-existed his period of active duty from 2004 to 2005. As there is clear and convincing lay and medical evidence that the disorder was reported by the Veteran and noted in National Guard examination and treatment records, the Veteran is not presumed to be in sound condition upon acceptance on active duty. Nevertheless, competent medical officers determined at that time that his disorder was not disqualifying and would not limit the performance of his military duties. Therefore, the dispositive issues are whether the disorder was aggravated by active duty service or is secondary to a service-connected anxiety disorder related to active service. The Board concludes from review of all relevant medical records that the only available measure of the level of disability is the frequency and duration of atrial fibrillation episodes. The records show that the Veteran has no other heart deficits although he has been diagnosed and treated for hypertension and hypercholesterolemia. The Veteran reported the onset of fatigue with increasing episode frequency after service but clinical testing has shown normal cardiovascular exercise capacity and function. The Board notes that the VA criteria for rating atrial fibrillation are based on the frequency of episodes. See 38 C.F.R. § 4.104, Diagnostic Code 7010 (2010). The Board concludes that the appropriate measure of an increase in this Veteran's disability in service is the frequency of episodes and their impact on his physical function. The Board concludes that direct service connection for atrial fibrillation is not warranted because there was no increase in disability during active service from 2004 to 2005. Several physicians noted that stress can be a trigger for episodes of atrial fibrillation. The Veteran and his military commander are competent to report on the stressful events in service and their reports are credible as they are consistent with the nature and circumstances of the hazardous and demanding service. However, lay and medical evidence shows that the frequency of episodes was approximately once every two months, controlled by medication, before, during, and immediately after active service. The Veteran continued service in the National Guard until he retired on the basis of qualifying years of service and not for medical reasons. He was also physically able to return to his previous civilian occupation. As there is clear and convincing lay and medical evidence that there was no increase in disability during active service, the presumption of aggravation does not attach. Despite the extreme stress of combat duty, the stress did not trigger an increase in frequency of attacks during the deployment. Rather, the increase in disability arose in August 2006 over one year after active service when the Veteran was experiencing stress related to readjustment to civilian life. Therefore, the remaining issue is whether that post-service stress, diagnosed as anxiety disorder with subsyndromal posttraumatic stress disorder related to the Veteran's experiences in Afghanistan, caused an increase in disability beyond the normal progression of the disorder. There is competent lay and medical evidence both for and against a relationship between the service-connected anxiety disorder and the increased frequency of atrial fibrillation episodes that were reported by the Veteran and noted by clinicians in August 2006. The Veteran and his civilian supervisor are competent and credible in their reports of behavioral changes and increased stress associated with readjustment to civilian life after the combat deployment. However, whether the stress and symptoms aggravated the heart disorder is a complex medical matter requiring medical expertise. A VA physician in February 2008 reviewed the history, examined the Veteran, and concluded that an anxiety disorder did not cause arrthymia because the disorder is caused by a cellular heart defect. The physician's specialty, if any, is not indicated in the records and he did not comment specifically on whether the anxiety disorder could aggravate arrhythmia in the form of increased frequency and duration of episodes. A VA internal medicine specialist reviewed the history but did not examine the Veteran. However, as the issue is limited to a medical opinion on cause and effect, the Board concludes that a review of the recorded symptomatic history and treatment which is not in dispute is an adequate basis for an opinion without an examination. The internal medicine specialist concluded that anxiety can cause transient effects but the natural progression of the disorder is that frequency and duration almost always increases over time. On the other hand, a VA psychologist examined the Veteran's mental health status and concluded that the combat stress and post-service adjustment caused both the anxiety disorder and aggravation of the heart disorder. The psychologist did not provide a rationale and is not a physician. He also did not explain why combat stress did not trigger increased frequency during service. The private electrophysiologist acknowledged that the causes for increased frequency of episodes are medically complex and that many patients experience fibrillation without stress. Nevertheless, he concluded that the anxiety symptoms associated with post-service readjustment were temporally coincident and that they likely accounted for this Veteran's "cardiac problems." The Board concludes that service connection for atrial fibrillation is warranted secondary to service-connected anxiety disorder. The Board places slightly less probative weight on the opinion of the psychologist. Although his overall level of training is not indicated in the file and must be assumed competent in his specialty, he is not a physician and his opinion on the aggravation of a heart disorder warrants less probative weight than the opinions of physicians specializing in internal medicine and electrophysiology. The Board places less probative weight on the opinion of the VA physician in February 2008 as it addressed the initial cause for the disorder but not specifically address aggravation. The remaining two opinions are in conflict but were provided by competent specialists who demonstrated awareness of the entire occupational and medical history. Additional probative weight is not afforded to the treating physician because the Veteran's symptoms are well documented and are not in dispute. There is no "treating physician" rule that would give a preference to the opinions of the physician who manages and treats the patient's disease over an opinion from a VA physician who reviews all the medical evidence of record because all of these health professionals are competent to make medical judgments. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001) (VA need not adopt a "treating physician rule"). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002). In this case, resolving all benefit of any doubt in favor of the Veteran, the Board concludes that his atrial fibrillation is service-connected secondary to a service-connected anxiety disorder. ORDER Service connection for atrial fibrillation is granted, subject to the legal criteria governing the payment of monetary benefits. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs