Citation Nr: 1304872 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 10-12 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for rheumatic fever residuals. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from February 1957 to February 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In January 2012, the Veteran testified before the undersigned at a Travel Board hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. The Veteran's service treatment records are missing and appear to have been destroyed in a fire at the National Personnel Records Center in St. Louis, Missouri in July 1973. Under such circumstances, the United States Court of Appeals for Veterans Claims (Court) has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The Veteran testified that he had rheumatic fever for a prolonged period when he was a child of 7 or 8 years old. He stated that he did not have heart problems, however, prior to entering service, and submitted a copy of an electrocardiogram report, dated prior to service in 1953, which reflected findings that were noted to be within normal limits. Currently, he has right bundle branch block as shown on testing. The Veteran and his wife testified that within one year of service, he saw a physician, who is currently believed to be deceased, who informed him that he had heart problems. They stated that this physician told them that if the Veteran essentially felt crushing chest pain, he needed medical attention right away, and also advised him to file a claim for VA benefits. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Generally, service connection requires: (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease; and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). Further, it is not enough that an injury or disease occurred in service; there must be chronic disability resulting from that injury or disease. 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) (2012). The provisions of 38 C.F.R. §§ 3.307, 3.309 (2012) allow for a presumption of service incurrence for certain chronic diseases, including cardiovascular disease, if manifest to a compensable degree within a year of separation from qualifying military service. See also 38 U.S.C.A. §§ 1101 , 1112 (West 2002). Every Veteran who served in the active military, naval, or air service after December 31, 1946, 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 the 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 , 1137 (West 2002). To rebut the presumption of sound condition for conditions not noted at entrance into service, 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. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23 ,027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, the Veteran and his wife have attempted to reiterate what a physician told them after the Veteran was released from service. They also stated that the Veteran has experienced heart problems since that time. Since there is lay evidence suggesting a chronic heart disability during the presumptive period and/or lay evidence of continuity of symptoms from service to the present time, the Board finds that the Veteran should be afforded a VA examination to determine the nature and etiology of any current diagnosis, including right bundle branch block, as well as any other existing heart/rheumatic fever disability. In addition, it appears that the Veteran is receiving benefits from the Social Security Administration (SSA). On remand, it should be determined if the award is based on age or disability. If the award is based on disability, then the Veteran's SSA records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and determine if this SSA award is based on age or disability. If the award is based on disability, obtain from SSA a copy of their decision regarding the Veteran's claim for SSA disability benefits, as well as the medical records relied upon in that decision. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of any current heart disability as well as if he has current residuals of rheumatic fever. The examiner should review the record prior to examination. The examiner should provide an opinion as to the following questions: The examiner should consider if the Veteran had a heart defect, infirmity, or disorder prior to service, or a defect, infirmity, or disorder due to rheumatic fever, prior to service. If so, the examiner should determine: A. If the Veteran's heart defect, infirmity, or disorder or rheumatic fever defect, infirmity, or disorder underwent an increase in disability, i.e., was aggravated, during service. If the preexisting heart or rheumatic fever defect, infirmity, or disorder did not undergo an increase during active service, i.e., was not aggravated, the examiner must provide an opinion if the evidence against aggravation is clear and unmistakable (evidence that is obvious and manifest). B. If the Veteran's heart or rheumatic fever defect, infirmity, or disorder underwent an increase in disability during service, was the increase in disability clearly and unmistakably (obviously and manifestly) due to the natural progress of the disease or was the increase in disability beyond the natural progress of the disease. If any current heart or rheumatic fever disability did not preexist service, the examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current heart or rheumatic fever disability had its clinical onset during service, within one year of service, or is related to any in-service disease, event, or injury. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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 2002 & Supp. 2012). _________________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).