Citation Nr: 1134065	
Decision Date: 09/12/11    Archive Date: 09/22/11

DOCKET NO.  02-04 848	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for heart disease.

2.  Entitlement to service connection for soft tissue sarcoma.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

A. Shawkey, Counsel



INTRODUCTION

The Veteran served on active duty from August 1966 to July 1968.  His service included a tour in Vietnam.

This matter comes to the Board of Veterans Appeals (Board) on appeal from November 2001 and December 2001 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  This matter was previously before the Board in September 2003, December 2006, and April 2010, at which times it was remanded for additional development.  Regarding the claim of entitlement to service connection for a cardiac disability, there has been substantial compliance with the prior remand directives by way of affording the Veteran adequate VA examinations, allowing him opportunities to submit additional evidence, and requesting records from the Social Security Administration (see Appeals Management Center (AMC) memo dated in September 2010).  Moreover, there is no possible prejudice to the Veteran in this regard in light of the favorable decision below regarding this claim.  See Stegall v. West, 11 Vet. App. 268 (1998). 

The issue of entitlement to service connection for soft tissue sarcoma is being remanded and is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if additional action is required on his part.


FINDING OF FACT

The Veteran's coronary artery disease is attributable to service


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the Veteran is shown to have a heart disability, namely coronary artery disease, that is proximately due to or caused by his service-connected PTSD.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist a veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

As explained below, with respect to the claim of entitlement to service connection for a heart disability, the Board has found the evidence currently of record to be sufficient to establish the appellant's entitlement to the benefit sought on appeal. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002) or 38 C.F.R. § 3.159 (2010).

II.  Analysis

Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active service.  38 U.S.C.A. § 1110 (West 2002).  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2010).  Service connection may also 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).  Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease, to include hypertension, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2010).  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).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  Allen, 7 Vet. App. at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened.  Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).

The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006).  Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995.  Consequently, because the Veteran's claim was filed prior to the effective date of the change in the regulation, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made.

Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516- 17 (1995).

The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran presents alternative theories of entitlement to service connection for his cardiac disability.  One theory is that it is secondary to his service-connected post-traumatic stress disorder (PTSD) (which claim the RO granted in an October 2004 rating decision), and the other is that it is due to his exposure to Agent Orange (he is presumed to have been exposed to Agent Orange based on his service in Vietnam; see 3.307(a)(6)(iii)).  

The Veteran's service treatment records are devoid of complaints or findings of a cardiac nature and show that he had a normal clinical evaluation of his heart at his separation examination in July 1968.  The examination report also shows that the Veteran had a negative chest x-ray.  His blood pressure reading at that time was 122 (systolic) over 80 (diastolic).  The Veteran denied having a history of shortness of breath, pain or pressure in his chest, or palpitation or pounding of his heart on a July 1968 Report of Medical History.

Postservice medical records show that the Veteran's heart problems began in May 1998 when he suffered a myocardial infarction.  Medical records show that he thereafter experienced and was hospitalized for recurrent episodes of chest pain requiring multiple cardiac catherizations and angioplasty.  

As the evidence outlined above does not show, nor does the Veteran contend, that he has had a chronic heart disability since service or continuity of heart symptomatology since service, service connection on a direct basis is not established.  

As far as nexus evidence, there is evidence that supports a link between the Veteran's cardiac disability and his service-connected PTSD.  See 38 C.F.R. § 3.310.  Such evidence includes a letter from Dr. Nagappan who in April 2010 stated that the Veteran had been under his care since 1998 for a cardiac condition and had had unstable angina requiring angioplasties.  He went on to state the Veteran had a history of agent orange exposure in Vietnam and post traumatic disorder syndrome and opined that this "may have played a role causing arteriolosclerotic coronary disease."  There is also the opinion of a VA cardiovascular examiner in August 2010 who "speculate[s]" the possibility of a link between the Veteran's PTSD and coronary artery disease.  In this regard, the examiner explained that the Veteran's cardiac issues began after a myocardial infarction in 1998 which had been complicated by multiple ptca's (percutaneous transluminal coronary angioplasty) and stent placements.  He noted that the Veteran had a history of dyslipidemia, hypertension and smoking.  He also noted that the information linking PTSD to coronary artery disease was not strong and explained that he had found two abstracts from a medical publisher showing that lipids could be related to PTSD, but he said that both studies were small and did not indicate a definite link.  

Though both of the above-noted opinions indicate a possibility of a link between the Veteran's heart disability and PTSD, they are clearly speculative  See 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. app. 609, 611 (1992) (medical evidence which merely indicates that the alleged disorder "may or may not exist or "may or may not" be related, is too speculative to establish the presence of the claimed disorder or any such relationship).  However, there is also the opinion of the VA psychiatric examiner in August 2010 who rendered a more specific and definitive link.  Like the VA cardiovascular examiner, the VA psychiatric examiner reviewed the Veteran's claims file and examined the Veteran.  He thereafter opined that it was at least as likely as not that the Veteran's previous use of Risperdal, which had been prescribed for paranoia related to his PTSD, was associated with the Veteran's strokes and transient ischemic attacks (TIA's), leading to vascular dementia.  Evidence showing that the Veteran had been prescribed Risperdal for his psychiatric symptomatology includes an April 2004 VA mental health clinic consult report and a May 2006 discharge summary from Ingahm Regional Medical Center.  There is also a February 2003 record by a Vet Center psychologist who reported that the Veteran's "psychotropic medication" was being monitored.  In support of his opinion, the VA psychiatric examiner in August 2010 referred to documentation which he said shows that there is an increased risk over a placebo of cerebrovascular events, stroke and transient ischemic attacks (TIA's), including fatalities, reported in patient trials of Risperdal in elderly patients.  Also on file are citations to medical literature that the Veteran's representative provided in February 2010 that to some degree link PTSD to heart conditions, including heart disease.

In light of the evidence outlined above, and in the absence of any evidence to the contrary, the Board finds after resolving all reasonable doubt in the Veteran's favor that his coronary heart disease is proximately due or the result of his service-connected PTSD.  His claim to this extent is therefore granted.  38 C.F.R. §§ 3.102, 3.310.


ORDER

Service connection for coronary artery disease is granted.


REMAND

The record reflects that the Veteran served in Vietnam.  He is therefore presumed to have been exposed to Agent Orange.  38 C.F.R. § 3.307(a)(5)(iii).  The Veteran asserts that he has soft tissue sarcoma due to his exposure to Agent Orange while serving in Vietnam.  The RO denied his claim on the basis that he does not have the disability that he claims.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The Veteran disagrees and asserts that his doctors have diagnosed him as having this disability.  The majority of medical evidence on file, both private and VA, does not reflect a diagnosis of soft tissue sarcoma.  Rather, the evidence is clear in showing that the Veteran has been treated for multiple lipomas, to include chest lipomas and subcutaneous tumors.  The Board granted service connection for porphyria cutanea tarda in April 2010.  Nonetheless, there is a February 2003 record from the Vet Center that contains a diagnosis of "Soft tissue sarcoma".  While this record is of diminished weight since it appears that the Veteran's treatment at the Vet Center has been for counseling services related to his anxiety and depression, it is sufficient evidence to satisfy the requirements set out in McLendon v. Nicholson, 20 Vet. App. 79 (2006), and afford the Veteran a VA examination.   

In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006).  The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold.  McLendon, 20 Vet. App. at 83.

Accordingly, the RO should arrange for the Veteran to undergo a VA examination by an appropriate examiner at a VA medical facility to determine the existence of any soft tissue sarcoma.  The Veteran is hereby advised that failure to report to any scheduled examination(s), without good cause, may result in denial of this claim for service connection (as the original claim will be considered on the basis of the evidence of record).  See 38 C.F.R. § 3.655. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to any scheduled examination(s), the RO should obtain and associate with the claims file (a) copy(ies) of the notice(s) of the date and time of the examination(s) sent to the Veteran by the pertinent VA medical facility.

The Veteran must also be provided with another opportunity to submit any information or evidence he has in support of this claim.  38 U.S.C.A. § 5103A(b).

Accordingly, the case is REMANDED for the following action:

1.  The RO must request that the Veteran identify all VA and non-VA medical providers who have treated him for soft tissue sarcoma.  The RO must then obtain copies of the related medical records that are not already in the claims folder.  All attempts to secure this evidence must be documented in the claims file by the RO.  If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claim, and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond.

2.  Thereafter, the RO must afford the Veteran a VA examination to determine the current existence (at any time since the claim was filed in December 2001) of any soft tissue sarcoma found, specifically identifying the type of any soft tissue sarcoma diagnosed.  The claims file and a copy of this remand must be provided to and reviewed by the examiner in conjunction with the examination.  All pertinent symptomatology and findings must be reported in detail.  Any indicated diagnostic tests and studies must be accomplished.
 
3.  The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2010).  In the event that the Veteran does not report for the scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 

4.  The examination report must be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures.

5.  After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2010).



______________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs