Citation Nr: 1306569	
Decision Date: 02/26/13    Archive Date: 03/01/13

DOCKET NO.  04-26 864	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for rheumatic heart disease.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran had active military service from August 1954 to November 1957.

This matter comes to the Board of Veterans' Appeals (Board) from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which denied service connection for rheumatic heart disease finding that new and material evidence had not been received to reopen the claim.  The Veteran testified at an RO hearing in October 2005.  In a February 2007 Board decision, the Board reopened the claim on the basis of new and material evidence, but denied the claim on the merits.  The Veteran appealed the decision to deny the claim to the U.S. Court of Appeals for Veterans Claims, (Court) which vacated the Board's decision in February 2008 and remanded the matter back to the Board.  The Board denied the Veteran's claim again in November 2009.  The Veteran appealed the Board's November 2009 decision to the Court, which vacated the Board's decision and remanded the case for additional development in June 2010.  In December 2010, the Board once again denied the claim.  The Veteran appealed the decision to the Court.  In May 2012, the Court issued a memorandum decision reversing the Board's December 2010 decision and granting service connection for rheumatic heart disease.  The Court remanded the matter to the Board for assignment of a disability rating and effective date.  As discussed in detail below, the Board's decision this date implements the Court's order granting service connection, and the RO, in effectuating this award, will then assign an appropriate disability rating and effective date, which are both separately appealable issues.  The Board does not make these initial determinations.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (indicating that, where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). 

FINDING OF FACT

The Veteran's rheumatic heart disease clearly and unmistakably pre-existed service and there is not clear and unmistakable evidence that the pre-existing rheumatic heart disease was not aggravated during his military service.  


CONCLUSION OF LAW

The Veteran's rheumatic heart disease was aggravated in service.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  In this decision, however, the Board is implementing the Court's May 2012 memorandum decision and granting service connection for the claimed rheumatic heart disease.  This award represents a complete grant of the benefits sought on appeal.  Thus, any failure to comply with the duty to notify and assist provisions of the VCAA, even if for the sake of argument this has occurred, is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error.  38 C.F.R. § 20.1102.  See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (clarifying that VCAA notice and assistance errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of not only establishing such error, but, above and beyond this, showing how it is unduly prejudicial, meaning outcome determinative of the claim).  There is no such possibility in this particular instance, so further discussion of VA's responsibilities is unnecessary.

II.  Service Connection

Factual Background

Service treatment records show that an August 4, 1954, enlistment examination report noted a normal clinical evaluation of the heart. The Veteran entered active service on August 16, 1954. An August 26, 1954, medical clinical consultation report noted the Veteran had a history of rheumatic fever and murmur. It was noted he reported a history of rheumatic fever in 1949 with arthralgia, fever, and heart involvement. He stated that since then he had noted feelings of pressure around the heart on exertion, dyspepsia, and weakness. An examination revealed the heart was not enlarged to percussion with a grade III blowing systolic murmur. The diagnosis was mitral insufficiency. 

Records note hospitalization from December 14, 1954, to January 21, 1955, with a diagnosis of rheumatic valvulitis, inactive with deformity of the mitral valve. It was further noted the disorder existed prior to service and was not incurred in the line of duty. The clinical records show that on December 20th there was no clinical or laboratory evidence of rheumatic reaction and no change in murmur. Records indicate he was asymptomatic of December 27th, January 3rd, and January 7th. A January 1955 narrative summary noted examination revealed the Veteran was not acutely ill and that shortly after admission was asymptomatic. There was a high-pitched squeaky murmur, but X-ray, laboratory, and serial electrocardiogram (EKG) revealed no abnormalities. X-ray studies of the chest and sedimentation rates were within normal limits. The examiner noted there was no acute activity of rheumatic fever or evidence of pericarditis and that the Veteran probably had a mild degree of mitral insufficiency secondary to an old rheumatic fever. The Veteran was returned to duty following a period of convalescent leave with a profile for limited physical activity. 

The service treatment records also included correspondence dated in January 1955 from the City of Detroit, Department of Health, Receiving Hospital, noting that at age 12 from April 26, 1948, to May 25, 1948, the Veteran was hospitalized for rheumatic heart disease with early mitral involvement and acute rheumatic fever. It was noted that on admission his heart was moderately enlarged to the left and that a previous history revealed treatment for rheumatic fever involving many joints. 

Subsequent treatment records show that in March 1955 the Veteran reported continuing complaints of pain during activity and at rest. Examination was negative except for the systolic apical murmur already described. A September 1957 cardiac consultation report noted that, except for an occasional cold and some left knee pain, the veteran had no pertinent problems or any sore throats or joint swelling during service. Clinical findings on examination were essentially unchanged and showed a questionable short systolic thrill in the 5th left intercostal space, R2 auscultation greater than A2, and a Grade II harsh systolic murmur. After exercise, no further murmurs were heard. An EKG study was within normal limits. The examiner's impression was rheumatic heart disease, inactive with prominence of the mitral valve and mitral insufficiency. A medical discharge from service was recommended. An October 1957 medical board report found rheumatic valvulitis, inactive with deformity of mitral valve, existed prior to service and was not incurred in the line of duty. It was specifically noted that the disorder was not permanently aggravated by active duty. 

In a statement dated in February 1958 the Veteran certified that he was treated at the Receiving Hospital in 1948. He also reported that from discharge in 1948 until his military service enlistment he was not treated for a rheumatic heart condition. 

An April 1958 private medical report showed a Grade II, pre-diastolic mitral murmur, blowing in type, with no palpable thrills or pulse deficits. Fluoroscopic and roentgen examinations of the chest were essentially normal and showed no evidence of heart enlargement. EKG studies revealed a normal graph. The diagnosis was rheumatic heart disease, mitral stenosis, Grade II. 

VA examination in October 1958 revealed a Grade II apical systolic murmur, with no basal rales and no ankle edema. An X-ray study showed no evidence of pulmonary or cardiovascular pathology and an EKG was normal. The diagnoses included rheumatic heart disease and anatomical valvulitis, inactive with deformity and mitral insufficiency due to rheumatic fever. 

VA hospital records dated from April 24, 1962, to May 23, 1962, show the Veteran was admitted with complaints including generalized pain, sore throat, and pressure and aching over the sternum. An EKG was considered abnormal on admission with first degree heart block, but follow-up EKG findings were within normal limits and an X-ray study was normal. It was noted that a recurrence of rheumatoid fever was ruled out and that after returning from a leave of absence from May 4th to May 22nd he had no joint pain. The final diagnoses did not include reference to rheumatic heart disease. 

A February 1974 private medical report noted clinical findings on routine examination in April 1958 of rheumatic heart disease with mitral stenosis, Grade II, and re-examination in February 1965 and March 1970 with no changes. It was noted that the Veteran was well compensated and the diagnosis was unchanged upon last examination. 

VA examination in March 1974 included diagnoses of hypertension and a history of rheumatic heart disease with mitral stenosis, Grade II. X-ray examination revealed a cardiac silhouette within normal limits and an EKG summary noted sinus rhythm with the heart in intermediate position and no definite evidence of myocardial damage. 

In correspondence dated in December 2002 the Veteran asserted that he had no problems and was fit for service upon enlistment. He reported that after a few months he experienced some chest pain during a period of field training in cold wet weather and was hospitalized for some weeks. He stated that after three years of service he was seen by a heart specialist who informed him that the rigors of Army life were making his heart murmur worse. He claimed that he had been told at his medical board that he would get a total and permanent service-connected disability rating. In subsequent statements and personal hearing testimony the Veteran asserted that his preexisting rheumatic heart disease was aggravated during active service, that he was treated for endocarditis in service, and that he was discharged from service because of an increase in the severity of his heart disease. 

In correspondence dated in April 2004 Z.A.K., M.D., reported that he had been treating the Veteran since 1981 and that he first developed cardiac arrhythmia and chest discomfort in April 1995 with no myocardial injury noted. Since 1995, he had atrial fibrillation and hypertension and had developed Parkinsonism and hyperlipidemia. It was noted that the Veteran had an episode of worsening rheumatic carditis in service and Dr. Z.A.K. expressed his opinion that the vigorous training of military service contributed to the Veteran's carditis in December 1954. 

A December 2005 VA examination report noted the claims file was reviewed and provided a detailed summary of the Veteran's medical history. It was also noted that the Veteran reported a ten year history of chronic shortness of breath after walking one block, occasional dizziness, and one or two syncopal episodes related to atrial fibrillation. The Veteran denied any chest pains or history of myocardial infarction, coronary artery disease, congestive heart failure, or cardiovascular surgery. A physical examination was essentially within normal limits. S1 and S2 heart sounds were normal with no evidence of audible murmurs. Heart rhythm was irregular and there was no evidence of extremity edema, jugular vein distention, or bruits. An EKG revealed a normal left ventricle ejection fraction of 62 percent, with a severely dilated left atrium, mild mitral insufficiency, and mild pulmonary hypertension. There was no evidence of echocardiographic stigmata of rheumatic heart disease. The diagnoses included acute rheumatic fever, resolved, and atrial fibrillation, not likely related to complications of rheumatic fever. 

The examiner stated that the claims file included a diagnosis of rheumatic valvulitis with mild deformity of the mitral valve prior to service. He noted that while the December 1954 hospital records showed fever and history of rheumatic fever, there was no evidence of any EKG changes, cardiomegaly, or changing heart murmur which would justify a diagnosis of carditis in service. He opined that "[e]ven if this episode were to be considered as recurrence of acute rheumatic fever; it is a natural course of the disease illness and not necessarily related to [the] physical activity of military life." It was noted that the Veteran did not have any current manifestations of rheumatic heart disease based upon a lack of residual valve affection on clinical and EKG examination. 

The Veteran reiterated his claims in correspondence apparently received by VA in February 2006. Submitted documents also included an undated, unsigned statement, in essence, asserting that medical records had been reviewed and that the Veteran had no evident heart damage prior to service. It was further noted that his having been hospitalized and treated for heart-related issues was evidence that he had additional heart damage as a result of the rigors of service. There is no indication to whom this statement may be attributed. 

A May 2008 private medical opinion from R.F., M.D., identified as a physician board-certified in internal medicine and geriatric medicine and board-eligible in occupational medicine, noted the Veteran's entire claims file was reviewed in preparation of the provided report. Dr. R.F. summarized the pertinent evidence of record and stated that "[r]egardless of the final diagnosis of his admission in December 1954, while in military service [the Veteran] clearly suffered an aggravation of his underlying heart disease." It was noted that due to the severity of his symptoms he had been hospitalized for over four weeks, that a different heart murmur was noticed on heart examination which reflected a change in his physical condition while in military service, that prior to the in-service hospital admission he had not required monthly bacillin injection, and that during service he continued to have periodic chest pains. It was the opinion of Dr. R.F. that to a reasonable degree of medical certainty the Veteran's heart disease was aggravated by his military service and that as a result of that aggravation he experienced atrial fibrillation, hypertension, mitral stenosis, and chronic fatigue. 

A VA medical expert opinion was obtained in November 2008 from the Director of Echocardiography at the VA Medical Center in Louisville, Kentucky, and Clinical Chief of Cardiovascular Medicine, Director of Non-Invasive Cardiology, and Professor of Medicine at the University of Louisville  (hereinafter "the ME"). The ME noted he was board-certified in internal medicine, cardiovascular disease, echocardiography, and nuclear cardiology. The provided opinions were based upon a review of the medical records including the May 2008 opinion of Dr. R.F. and were held to a reasonable degree of medical probability and certainty. The pertinent medical records were summarized and opinions were provided stating that the Veteran had rheumatic fever, rheumatic valvulitis, and rheumatic heart disease that preexisted military service, that his rheumatic heart disease did not undergo an increase during his military service, and that his rheumatic heart disease was not worsened by his military service. A disagreement with the opinion provided by Dr. R.F. as to aggravation was expressed. It was the opinion of the ME that the Veteran's heart disease was not aggravated by his military service and that his atrial fibrillation, hypertension, mitral stenosis, and chronic fatigue were not directly or indirectly due to his prior military service. 

In an August 2009 supplemental report the ME stated that a strikingly abnormal and elevated erythrocyte sedimentation rate of 125 milliliters per hour (mm/hr) measured during the Veteran's 1948 hospitalization was strong support for a systemic inflammatory process characteristic of acute rheumatic fever and that it was the opinion of his treating physician at that time and by subsequent physician opinion that the proper diagnoses were rheumatic fever and rheumatic heart disease. It was noted that recurrent attacks of rheumatic fever were most frequent in adolescence and young adulthood and that long-term administration of penicillin antibiotics was of proven benefit in the prevention of further bouts of rheumatic fever. 

The ME asserted that the documentation of an unequivocally pathologic murmur within a short time frame of military service and no evidence of a recurrence of acute rheumatic fever confirmed the presence of rheumatic valvular heart disease prior to the Veteran having joined the military. It was further noted that the Veteran had several medical evaluations focusing on rheumatic heart disease during active service and that none of these evaluations were diagnostic for a recurrence of rheumatic fever and that no treating physician had concluded there was a recurrence or flare-up of rheumatic fever. The records of hospitalization from December 14, 1954, to January 21, 1955, were noted to be consistent with the provided opinion and that the evidence did not show polyarthralgias, abnormal conduction on EKG, elevated sedimentation rate, or evidence of a preceding Group A streptococcal infection. Serial temperatures were predominantly 99-degrees or less and did not support an illness with a febrile course as seen with rheumatic fever. The presence of murmur at that time was consistent with the Veteran's chronic rheumatic heart disease. 

The ME also noted that subsequent clinical records revealed no basis for an opinion that the Veteran had a worsening of his preexisting rheumatic heart disease nor that he had a temporary or intermittent flare-up during military service. The Veteran's complaint of chest pain was not considered to have been based upon recurrent rheumatic fever or a worsening of rheumatic heart disease because the basis for pathophysiologies or mechanisms to explain chest pain due to rheumatic fever were not evident on his medical evaluations. It was noted that echocardiography findings in December 2005 revealing only mild mitral regurgitation without evidence of aortic valve stenosis or regurgitation did not support a finding that severe pulmonary hypertension from rheumatic heart disease had occurred due to severe mitral valve disease. The presence of chest pain complaints in the absence of recurrent rheumatic fever did not support a worsening of the preexisting rheumatic heart disease. 

The ME stated that during the course of his military service the Veteran never displayed typical symptoms of heart failure or diagnostic tests to support the contention that there was a worsening of his preexisting rheumatic heart disease and that there were no medical findings during service of a progressive heart weakening or heart failure. It was further noted that it was unreasonable to opine that the different description of cardiac murmur during service was explained by a recurrence of rheumatic fever without evidence of very frequent bouts of rheumatic fever or other confirmatory findings. The most likely explanation for the different descriptions of the cardiac murmur related to variance among different examiners. 

It was the opinion of the ME that there was no objective evidence of a worsening of the Veteran's rheumatic heart disease during military service and that there was no medical evidence to conclude that he had a worsening of his preexisting rheumatic heart disease on the basis of his military service or on the basis of a natural progression of the disease process. The opinions of Dr. R.F. which appeared to be predominantly based on the complaints of chest pain and the description of a cardiac murmur in December 1954 were found to be inconsistent with the absence of evidence of carditis upon admission in December 1954 and with the echocardiography study in December 2005. It was noted that although the quality of a murmur may be unique or diagnostic of a specific valvular heart disease more often than not the quality was non-specific. There was no specificity to the description of a "squeaky murmur" and the ME stated it was not a diagnostic hallmark of aggravation of rheumatic or valvular heart disease. There was disagreement with the opinion of Dr. R.F. that an August 1954 examination report indicating a heart examination was normal with no documentation of audible murmur supported the benign nature of his physical condition at that time. It was the opinion of the ME that the absence of a murmur did not confirm benign rheumatic valvular heart disease and that the documentation of an unequivocally pathologic murmur within a short time frame of military service with no evidence of a recurrence of acute rheumatic fever confirmed the presence of rheumatic valvular heart disease prior to service. 

In response to the opinions of Dr. R.F. that atrial fibrillation, hypertension, mitral stenosis, and chronic fatigue developed due to aggravation during military service it was noted that there was no physiologic basis for an opinion that the physical demands of military service would have damaged the mitral valve and that the December 2005 echocardiogram revealed no damage or tears of the mitral valve leaflets or its supporting structures and no evidence of mitral stenosis. It was noted that hypertension was an alternative cause for the Veteran's atrial fibrillation, but that there was no obvious manner to explain how physical activity during military service would have caused a delayed onset of atrial fibrillation years later. It was also noted that the opinion of Dr. R.F. was unclear as to the mechanism by which military service would aggravate the rheumatic heart disease to result in hypertension and that there was no scientific basis to reach a cause-and-effect relationship between the Veteran's military service and the subsequent development of hypertension with any degree of medical probability or certainty. Fatigue was also noted as not explained on the basis of rheumatic heart disease because the December 2005 echocardiogram findings revealed mild mitral valve disease and normal pumping ability of the major pumping chamber of the heart. 

In correspondence dated in October 2009 Dr. R.F. stated that he had reviewed the opinion of the ME and asserted that the report "spins a convoluted web questioning findings in the medical history, the presenting symptoms as well as clinical findings and his overall clinical course." It was further asserted that the conclusions reached by the ME "clearly reflect his bias," that he mainly questioned the diagnosis of rheumatic fever, and that he stated there was no evidence to support an aggravation "despite notations in the VA [c]laim file to the contrary." It was the opinion of Dr. R.F. that the Veteran had ongoing ischemia that was the source of the aggravation of his underlying heart disease and that the ME completely ignored the fact that the Veteran's overall condition had deteriorated while in service. Dr. R.F. reiterated his summary of the pertinent evidence and further asserted that after passing an entrance examination the Veteran developed cardiac ischemia while in training. 

Laws and Regulations

Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110 , 1131 (West 2002); 38 C.F.R. § 3.303 (2012).  Symptoms of chronic disease from the date of enlistment or so close thereto that the disease could not have originated in so short a period will establish preservice existence thereof. 38 C.F.R. § 3.303(c). 

VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132 (West 2002); 38 C.F.R. § 3.304(b) (2012).  The regulations provide that determinations should not be based on medical judgment alone as distinguished from accepted medical principles, or on history alone without regard to clinical factors pertinent to the basic character, origin and development of such injury or disease.  They should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof.  The history conforming to accepted medical principles should be given due consideration, in conjunction with basic clinical data, and be accorded probative value consistent with accepted medical and evidentiary principles in relation to value consistent with accepted medical evidence relating to incurrence, symptoms and course of the injury or disease, including official and other records made prior to, during or subsequent to service, together with all other lay and medical evidence concerning the inception, development and manifestations of the particular condition will be taken into full account.  Signed statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact.  Other evidence will be considered as though such statement were not of record.  Id.  

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 3-2003 (Jul. 16, 2003).  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches.  See Cotant v. Principi, 17 Vet. App. 116 (2003). 

The Court has held that the phrase "clear and unmistakable evidence" means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)).  It was noted, in essence, that the non-adversarial nature of VA compensation laws made VA's presumption rebuttal burden distinguishable from other evidentiary presumption law theories, but that VA was not precluded from assessing the probative value of the other contrary evidence of record in meeting this burden.  The Court found that "[t]he Board is free to reject this evidence if it lacks competency or credibility.  Furthermore, the Board may find that the evidence is of such low probative value that it does not affect the "unmistakability" of the evidence showing preservice inception of the seizure disorder.  In short, the Board is not precluded from finding that the condition existed prior to service simply because there is some evidence to the contrary if their findings of fact indicate that the contrary evidence is of no weight or otherwise non-probative.  However, the Board must provide reasons and bases for such a finding."  Id. at 261-262.  If there is clear and unmistakable evidence to show that a veteran's disability was both preexisting and not aggravated by service (a two-prong test), then the veteran is not entitled to service-connected benefits.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed Cir. 2004). 

A preexisting injury or disease will be considered to have been aggravated by active military 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.  Aggravation may not be conceded, however, where the disability underwent no increase in severity during service. 38 U.S.C.A. § 1153  (West 2002); 38 C.F.R. § 3.306 (2012). 

In cases involving aggravation by active service, the rating is to reflect only the degree of disability over and above the degree of disability existing at the time of entrance into active service, whether the particular condition was noted at the time of entrance into active service, or whether it is determined upon the evidence of record to have existed at that time. 38 C.F.R. § 3.322(a)  (2012).  The Court has also recognized that temporary flare-ups of a preexisting disorder during service, without evidence of a worsening of the underlying condition, did not constitute aggravation.  Hunt v. Derwinski, 1 Vet. App. 292, 296-7 (1991). 

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).  For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic.  Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned.  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). 

In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999).  The United States Court of Appeals for the Federal Circuit  (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 

The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required.  Grottveit v. Brown, 5 Vet. App. 91 (1993).  The Court has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent.  See Clyburn v. West, 12 Vet. App. 296 (1999). 

Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303.  In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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. 

In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence.  The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence."  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so.  See Owens v. Brown, 7 Vet. App. 429 (1995). 

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). 

Analysis

As explained in the introduction, the Court issued a May 2012 memorandum decision reversing a prior December 2010 Board decision that had denied service connection for rheumatic heart disease.  The Court noted that the Veteran did not dispute that his rheumatic heart disease pre-existed service.  The Court also determined that in reviewing the medical evidence of record and the credentials of the individuals who provided the conflicting medical opinions, the Board did not adequately demonstrate that there was no clear and unmistakable evidence that the Veteran's rheumatic heart disease was not aggravated during his military service.  Therefore, the Court concluded after consideration of the Veteran's and the Secretary's briefs, and review of the record, that the Board's December 2010 decision was reversed and the matter was remanded to the Board for assignment of a disability rating and effective date.



ORDER

Service connection for rheumatic heart disease is granted.




____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs