Citation Nr: 1217239	
Decision Date: 05/14/12    Archive Date: 05/24/12

DOCKET NO.  08-30 108A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a claimed heart disorder.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Shana Z. Siesser, Associate Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from January 1960 to March 1968.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2007 rating decision of the RO.  A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

This case was previously before the Board in January 2011 and was remanded for additional development.  The RO has complied with the remand directives.  

 

FINDING OF FACT

The currently demonstrated atypical chest pain is shown as likely as not to be due to atrial fibrillation secondary to myocardiopathy, etiology unknown that had its clinical onset during the Veteran's period of active service.  



CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his disability manifested by atypical chest pain is due to atrial fibrillation secondary to myocardiopathy, etiology unknown that was incurred in active service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2011). 



REASONS AND BASES FOR FINDING AND CONCLUSION

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.) and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions.  38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction.  The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts).

The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  The evaluation of evidence generally involves a 3-step inquiry.  

First, the Board must determine whether the evidence comes from a "competent" source.  The Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible).  The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record.  

Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159.  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when:

(1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer);

(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.  

Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).   

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  

In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation."  See, e.g., Barr, supra (concerning varicose veins); see also Jandreau, supra (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).  

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 


Duty to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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) (2011).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet.  App. 183 (2002).  

Proper notice from VA 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; (3) that the claimant is expected to provide; and (4) VA must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ), as was done in this case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was advised that VA used a Schedule for Rating Disabilities (Schedule) that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment.  

Here, the VCAA duty to notify was satisfied by way of letters sent to the Veteran dated in April 2007 and February 2008 that fully addressed all notice elements.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained the service treatment records, VA outpatient treatment records and private medical records.  

Additionally, the Veteran was afforded VA examinations in August 2007 and April 2011.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).


Merits of the claim

The Veteran asserts that his heart disorder is related to the complaints of heart palpitations he experienced during service.    

Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2011). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2011); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).

In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a 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).

Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury incurred 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).  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 a disease was incurred in service.  38 C.F.R. § 3.303(d).  

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.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

The service treatment records showed that, in a November 1959 Report of Medical History, the Veteran complained of having pain or pressure in chest and palpitation or pounding heart. 

From April 1961 to October 1961, the Veteran voiced numerous complaints and sought medical attention for a fast heart beat. The Veteran was diagnosed with atrial fibrillation, secondary to myocardiopathy, etiology unknown, with probable involvement of the high lateral portion of the left ventricle.   

The service treatment records contain electrocardiographic records dated in September 1961 and November 1961. 

In March 1962, the Veteran complained of having shortness of breath, pain, or pressure in chest, and palpitation or pounding of the heart.  In a Report of Medical History, the Veteran noted having an episode of atrial fibrillation in July 1961 with etiology unknown.  The March 1962 Report of Medical Evaluation showed a normal clinical evaluation of the heart.

A June 1962 treatment record noted a past history of tachycardia and hospitalization at Fort Hood one year earlier.  The Veteran had another test done in March 1964 for complaints of an irregular heartbeat.  In a 1966 Report of Medical History, the Veteran reported having palpitations or pounding heart.

On the February 1968 discharge Report of Medical History report, the Veteran denied having or ever having had pain or pressure in his chest, palpitation or pounding heart, and shortness of breath.  An examination found a normal clinical evaluation of his heart.  

The post-service treatment records show an emergency room treatment record from June 2005 when the Veteran complained of chest pain.  Upon examination, he was noted to have normal heart rhythm.  In March 2007, the Veteran complained of having chest pains. He denied having palpitations or shortness of breath, but he was prescribed aspirin for his heart.  

An April 2007 echocardiogram showed normal left ventricular size and LV systolic function with no pericardial effusion; however, the Veteran's pulse/tissue dopplet pattern was suggestive of impaired relaxation indicating diastolic dysfunction.  

The Veteran underwent a VA examination in August 2007.  He reported having pain on the left side of his chest.  He stated that the pain had since resolved.  A stress test was conducted with normal results.  The examiner also found no ischemia or infarction.  

A March 2008 treatment record noted a one year history of chest pain.  The Veteran underwent a cardiac catheterization.  He was treated again in the emergency room in April 2008 for chest pain.  He was diagnosed with moderate circumflex disease.  

In April 2008, the Veteran was treated in the cardiology clinic.  The record noted that the Veteran had coronary artery disease and hypertension and had reported to the emergency department with an episode of chest pain that was found not to be cardiac in nature.  A chest x-ray study was normal.  

In May 2008, the Veteran was given a holter monitor for palpitations.  The results recorded predominant rhythm to be sinus.  There were frequent premature atrial contractions and occasional premature ventricular contractions with no sustained or non-sustained runs of ventricular tachycardia.  Additional VA treatment records from 2008 through 2011 showed multiple complaints of chest pain, bilateral claudication and angina. 

The Veteran testified at a hearing in June 2010 that he had been hospitalized during service for a rapid and irregular heartbeat.  He could not remember when he first was treated for chest pain after service, but noted having heart problems during sexual activity.  He reported being treated by a private physician for three years, in addition to going to VA.

In January 2011, the Board remanded the claim for additional development, including assisting the Veteran in collecting private treatment records.  The Veteran was provided with an authorization and consent form and asked to provide the information of his private physicians.   In a February 2011 response, the Veteran stated that he had no additional information to submit.  

The Veteran underwent a VA examination in April 2011.  It was noted that the Veteran's symptoms of chest pain began in 2007.  His most recent episode was in March 2011 when he was treated in the emergency room with a diagnosis of "atypical chest pain - probable reflux/esophagitis."  Cardiology evaluations had been negative for ischemic heart disease.  

The examiner performed a physical examination and conducted a full review of the claims file.  She stated that the Veteran had a diagnosis in service of "atrial fibrillation, secondary to myocardiopathy, etiology unknown with probable involvement of the higher lateral portion of the left ventricle."  

The Veteran's current diagnosis was noted to be atypical chest pains with no objective findings of ischemic heart disease, atrial fibrillation, cardiomyopathy, or a cardiac condition with clinical onset in active duty.

The examiner opined that the Veteran's current heart condition ("non-obstructive coronary artery disease") was less likely as not caused by or the result of active duty.  As a rationale, the examiner stated that there had been no evidence of a heart disorder between service and 2007, a period of approximately 40 years.  Additionally, the symptoms in service were noted not to be the same symptoms that he was currently experiencing.  

On review of the entire record, there is clear medical evidence to establish the presence of atrial fibrillation due to unknown cardiomyopathy during the Veteran's period of active service.  While VA examiner recently opined that the current heart condition identified as being non-obstructive coronary artery disease was less likely than not related to the events in service, the examiner did not fully address the significance of the findings exhibited in service.  

To the extent that the Veteran's symptoms in service were found to be different than the chest pain he currently was experiencing, another likely cause of the current manifestations has not been identified.    

Moreover, on this record, there is no showing that the current chest pain is not causally related to the unknown cardiomyopathy that was identified as being productive of atrial fibrillation during service.  

With regard to lay evidence, the Veteran is competent to report symptoms of chest pain. See 38 C.F.R. § 3.159(a)(2); Layno, 6 Vet. App. at 469.  While laypersons have been found not to be competent to provide evidence as to etiology in more complex medical situations, the Veteran's lay assertions are credible for the purpose of establishing the nature of the current chest pain.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007).   

Having reviewed the entire record, the Board finds the evidence to be relative equipoise in showing that the current atypical chest pain as likely as not is related to the atrial fibrillation due to unknown myocardiopathy exhibited during service.  

Accordingly, in resolving all reasonable doubt in the Veteran's favor, service connection is warranted.  




ORDER

Service connection for atypical chest pain due to atrial fibrillation due to myocardiopathy of unknown etiology is granted.    



____________________________________________
STEPHEN L.WILKINS
Veterans Law Judge, 
Board of Veterans' Appeals
Department of Veterans Affairs