Citation Nr: 1244331 Decision Date: 12/31/12 Archive Date: 01/09/13 DOCKET NO. 07-06 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a cardiovascular disease, including cardiomyopathy. 2. Entitlement to service connection for right knee disability, including degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to April 1984 and from January 2003 to August 2004. Additionally, he had periods of active duty for training and inactive duty for training with reserve units. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was originally scheduled to testify at a Board hearing in March 2009. However, he withdrew his hearing request in a February 2009 letter. In November 2010, the Board remanded this case for further development. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This paperless file contains additional relevant documents, including VA treatment records, which have been reviewed in conjunction with this decision. The issue of entitlement service connection for right knee disability 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. FINDING OF FACT The competent and credible evidence shows that the Veteran's cardiovascular disease is related to his military service. CONCLUSION OF LAW Cardiovascular disease was incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Cardiovascular Disease In this decision, the Board awards service connection for cardiovascular disease; which represents a complete grant with regard to the issue decided. As such, no further notice or assistance is required to assist the Veteran in substantiating this claim. In order to establish service connection, the facts, as shown by evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes 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, or any period of inactive duty training (IDT) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21-24); 38 C.F.R. § 3.6. Service connection may accordingly be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training, or from injury incurred or aggravated while performing inactive duty training. See 38 U.S.C.A. §§ 101, 106, 1110, 1131. Certain chronic disabilities, such as cardiovascular-renal disease, are entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation. 38 C.F.R. §§ 3.307, 3.309. It is unclear whether the Veteran's cardiovascular disease is a cardiovascular-renal disease for purposes of that regulation, but as service connection is established on a direct basis below, further consideration of entitlement of a presumptive basis is unnecessary. The Board notes that a November 1999 electrocardiogram (ECG), between the Veteran's periods of active duty service, was abnormal. However, no associated disorder was noted prior to the Veteran's most recent period of active duty service and so the Veteran is presumed to have been in sound condition with regard to his heart at the beginning of that period. See 38 U.S.C.A. § 1132; 38 C.F.R. § 3.304(b). Direct service connection requires competent and credible evidence of a current disability; competent and credible evidence of an in-service occurrence or aggravation of a disease or injury; and a nexus between the in-service injury and the Veteran's current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The record shows that the Veteran was first diagnosed with cardiomyopathy and congestive heart failure in April 2005. Thus, the current disability requirement is satisfied. The Veteran's service treatment records are silent with regard to an active duty onset of cardiovascular disability, but did note findings of sinus bradycardia on a March 2003 ECG. Despite this, the March 2003 examiner found the Veteran's heart to be normal. Thus, this in-service onset or injury requirement is not met. Alternately, service connection may be granted upon a finding of continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service. 38 C.F.R. § 3.303(b); see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). The evidence of record shows symptoms of cardiovascular disease dating back to the Veteran's most recent period of service. VA treatment records from September 2004, the month following his separation from service, to the time of the April 2005 diagnosis show the Veteran's complaints of chest pain and/or shortness of breath following exercise, noting that he was training for a marathon. The Veteran, himself, has stated that these symptoms began during his active duty service, but he did not seek treatment until he returned home. See Statement dated October 2005; February 2008 Decision Review Officer (DRO) hearing. Additionally, the July 2005 examiner found that the Veteran's dilated cardiomyopathy was related to the Veteran's chest pain and significant dyspnea complaints dating back to his deployment in 2004. VA examinations in December 2010 and February 2012 have likewise found a causal connection between the Veteran's active duty military service and his current disability. Therefore, the Board finds that these continuous symptoms dating back to service are attributable to the Veteran's currently diagnosed cardiovascular disease. In conclusion, the record supports a grant of service connection for cardiovascular disease. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been appropriately applied. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for cardiomyopathy and congestive heart failure is granted. REMAND Right Knee Disability In this case, the Veteran has indicated that his symptoms began during IDT with the National Guard, between his two periods of active duty service. See e.g., Statement dated October 2005; February 2008 DRO hearing. As the Veteran has indicated that his symptoms began during IDT, not during his active duty service, the evidence must show that the Veteran was disabled or died from injury incurred in or aggravated in line of duty. See 38 U.S.C.A. § 101, 106, 1131; 38 C.F.R. § 3.6. At his DRO hearing, the Veteran indicated that he had injured his knee during weekend drill in 1995 or 1996 and had sought treatment for this injury at Smyrna Medical Center. VA's attempt to locate these records was unsuccessful as the letter requesting them was returned. The Veteran sought these record himself and was informed that due to the relocation of the hospital and the passage of time. Thus, despite the best efforts of the Veteran and VA, an injury incurred in the line of duty during IDT has not been established. The Veteran was placed on a physical profile for degenerative joint disease of his right knee in April 1997 after he submitted a letter from his private physician dated March 1997 stating that he was undergoing an exacerbation of his degenerative joint disease of the right knee and needed to avoid prolonged exertion. This letter did not indicate the date or circumstances of the onset of the Veteran's right knee degenerative joint disease. The service treatment records do not show an additional injury or treatment for a right knee disability during the Veteran's subsequent period of active duty service. The February 2012 examiner refers to a previously unreported injury while jogging in 2003 during active duty service. The existing medical opinion are inadequate for VA purposes. The December 2010 opinion found that the Veteran's right knee disability was aggravated by post-service surgery. The February 2012 opinion does not clarify whether the Veteran's right knee disability had its onset during active duty service or within one year of active duty service, was aggravated by active duty service, or was otherwise shown to have been incurred in or due to an event of service. Instead, the February 2012 opinion states generally that it is at least as likely as not one of these situations. Likewise, the rationale is unhelpful as it refers generally to an examination of the Veteran and a review of the record, as well as the relevant medical texts, without any direct application of the principles contained in these texts to the Veteran's specific case. Thus, the Board finds that a new medical opinion is necessary to address the issues of causation or aggravation. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of any current right knee disability found to be present. The claims file must be reviewed in conjunction with the examination. All indicated tests and studies should be conducted. Specifically, the VA examiner should address the following questions: a. Does the Veteran currently have a right knee disability, to include degenerative joint disease? b. Is it at least as likely as not (50 percent probability or more) that any such current right knee disability had its onset in service? c. Is it at least as likely as not (50 percent probability or more) that any such current right knee disability had its onset in the year immediately following any period of active duty service? d. Is it at least as likely as not (50 percent probability or more) that any such current right knee disability is otherwise the result of a disease or injury in service? e. If the Veteran's right knee disability is found to have had its onset between the Veteran's two periods of active duty service, is it at least as likely as not (50 percent probability or more) that this disability was aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his subsequent period of active duty service? The examiner should provide all examination findings, along with the complete rationale for each opinion expressed and conclusion reached. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so much be provided. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. 2. Thereafter, review the claims file and readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has 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). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs