Citation Nr: 1307672 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 09-45 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for idiopathic cardiomyopathy. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran's association with the Army National Guard was between February 1990 and September 2008. He served on active duty for training from May 1990 to September 1990, and on active duty from November 1990 to May 1991, and again from September 1998 to December 2004. This appeal arises from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2011, the Board remanded the claim for additional development. That development has been completed. FINDINGS OF FACT Idiopathic cardiomyopathy, a disease, first manifested during a period of inactive duty for training; the Veteran had no injury, aggravation of an injury, acute myocardial infarction, cardiac arrest, or cerebrovascular accident during inactive duty for training. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for idiopathic cardiomyopathy have not been met. 38 U.S.C.A. §§ 106, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6(a), 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in August 2008 and January 2009. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disabilities under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The claim was readjudicated in the October 2012 supplemental statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, Virtual VA file, and available private and VA treatment records have been obtained. The RO has attempted to obtain a Line of Duty determination from the military regarding the appellant's October 2006 episode of idiopathic cardiomyopathy. These requests have been made to the Adjutant General of Tennessee, Defense Personnel Retrieval System, National Personnel Records Center (NPRC), and United States Army Personnel Center (ARPERCEN); but none of these sources has been able to produce such a report. In an October 2012 memorandum, the RO determined that all sources of this report and other military information had been exhausted and further attempts would be futile. In a September 2012 letter the Veteran was informed that a Line of Duty determination was unavailable. The Veteran has had an opportunity to submit any records in his possession. As it is evident by the record that the RO has thoroughly developed the medical and military records, the Board finds that the RO has fully complied with the requirements of 38 U.S.C.A. § 5103A(b)(3), and that it is reasonably certain that a Line of Duty determination is now unavailable or does not exist. In addition, the Veteran has been provided with the appropriate VA examination in connection with the claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The second and third elements may be established by showing continuity of symptomatology. Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology." Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Active service includes any period of active duty training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training (INCDUTRA) includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Thus, with respect to the Veteran's Army Reserves service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or (with the exceptions noted above) an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). For certain chronic disorders, including cardiovascular disease, service connection may be presumed to have been incurred in service if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). However, presumptive periods do not apply to ACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the periods of ACDUTRA is not appropriate. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). As noted in the Introduction of this decision, the service personnel records show that the Veteran served on active duty for training from May 1990 to September 1990, and on active duty from November 1990 to May 1991, with another period of active duty from September 1998 to December 2004. In this case, the Veteran contends that he is entitled to service connection for a heart disability incurred when he suffered a heart attack on October 14, 2006 during drills with his National Guard unit. The evidence indicates that on October 14, 2006, during an Army Physical Fitness Testing (APFT), the Veteran was transported by ambulance to the hospital for symptoms of dizziness. After 5 days of evaluations, it was determined that his heart was weak with reduced ventricular ejection fraction, possibly due to a virus, and he was placed on medication to strengthen the heart. In June 2012, the Defense Finance and Accounting Service (DFAS) provided pay statement summaries for the Veteran for the period from January 2006 to December 2006. According to DFAS on October 14, 2006, and October 15, 2006 the Veteran's pay was not active duty pay. Therefore, it is concluded his service on the date in question was inactive duty for training. In turn, to determine whether the Veteran is entitled to service connection for a heart disability now depends on whether he is disabled from an injury in line of duty or became disabled due to an acute myocardial infarction, cardiac arrest, or cerebrovascular accident that occurred during this period of inactive duty for training. Private treatment records show that on October 14, 2006, the Veteran was admitted to the hospital due to chest pain and syncope after a 2 mile run during physical training with the National Guard. Cardiac testing failed to show coronary artery disease, but did reveal a reduced left ventricular ejection fraction of 30-35 percent and a mildly elevated left ventricular end-diastolic pressure. While the Veteran presented marked asymptomatic bradycardia, work-up for arrhythmia was negative. The diagnosis was idiopathic cardiomyopathy, attributed to possible viral causes. Secondary diagnoses were first degree atrioventricular (AV) block and sinus bradycardia. A January 2007 echocardiography was normal, although an electrocardiogram revealed abnormal findings of sinus rhythm first degree AV block with regular sinus rhythm in V1 or V2, right VCD or right ventricular hypertrophy. No myocardial ischemic changes were shown. Chest x-rays failed to show acute cardiopulmonary disease. Subsequent treatment reports documented continued treatment for nonischemic cardiomyopathy with medication and recurrent syncopal episodes triggered by strenuous physical activity. The Veteran's personnel file contains a memorandum dated in February 2008, wherein it was noted that the Veteran suffered from acute chest pain which resulted in 2 hospitalizations when the Veteran attempted to take an APFT, although the examining physicians noted no abnormalities. It was determined that the Veteran's symptoms appeared to be symptomatic with anxiety disorder. A medical discharge, based on the Veteran's history of cardiovascular distress each time the Veteran underwent an APFT, was recommended. A May 2008 medical statement noted that the Veteran was under treatment for idiopathic cardiomyopathy which was diagnosed in October 2006 after he was admitted to the hospital for complaints of chest pressure. Catherization did not show significant coronary artery disease, although and echocardiography revealed reduced left ventricular ejection fraction. The physician indicated that he did not think the Veteran should return to full time duty with the Army National Guard given the ongoing work up. While it was possible the Veteran would fully recover, it would be best if the Veteran avoided strenuous exercise. On VA general examination in 2008, the Veteran reported that in 2006 he suffered an acute myocardial infarction during physical training in active service. He related a history of chronic congestive heart failure since that time, as well as hypertension, angina, and moderate dyspnea on exertion. On examination chest auscultation and percussion was normal. No jugular venous distension was noted. Sounds present were S1 and S2. Rhythm was normal without clicks, murmurs or pericardial rub. The examiner diagnosed cardiomyopathy with no significant effects. No other heart abnormality was found on examination. On VA cardiological evaluation in March 2009, the clinician noted cardiomyopathy, which continued to be symptomatic but only with physical activity. His medication was increased at that time. The clinician also noted palpitations possibly due to premature ventricular contractions, or an arrhythmia like atrial fibrillation. The Veteran was seen at the emergency room in September 2009 with complaints of numbness in the hands and feet, as well as sharp chest pain. A history of cardiomyopathy with near normal ejection fraction was noted. The assessment was acute hyperventilation and atypical chest pain. Further evaluation showed that it was unlikely that the Veteran was at risk for ventricular arrhythmias. An April 2010 outpatient treatment note from the cardiology clinic recorded complaints of chronic fatigue and orthopnea. The clinician noted an estimated ejection fraction of 40 to 45 percent, and mild pulmonic valve regurgitation. Continued treatment for cardiomyopathy was noted. Accordingly, these records are absent for evidence of an injury, acute myocardial infarction, cardiac arrest, or cardiovascular accident during a period of inactive duty for training. These records document only that the Veteran suffered a syncopal episode after a run during a period of inactive duty for training due to a disease process diagnosed as idiopathic cardiomyopathy, which has been attributed to possible viral causes. These records are therefore evidence against the claim. Additionally, the Board notes that while the claims file contains a Statement of Rights for a Line of Duty Investigation dated in December 2006, a line of duty determination for the events which occurred on October 14, 2006 is not of record. However, given that the Veteran suffers from a disease process, rather than an injury, that manifested during a period of inactive duty for training, a Line of Duty determination is irrelevant to the Veteran's service connection claim. The evidence of record does not support the Veteran's claim because this evidence is not probative of an injury, acute myocardial infarction, cardiac arrest, or cardiovascular accident during any period of inactive duty for training. The Board recognizes the Veteran's contentions as to the diagnoses and relationship between his service and the claimed disability. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss ongoing shortness of breath, chest pain and symptoms of dizziness or other observable problems. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, the currently diagnosed idiopathic cardiomyopathy and its medical causation are not subject to lay observation or assertion, and fall outside the realm of common knowledge of a lay person. The diagnosis of idiopathic cardiomyopathy is based on clinical findings, to include radiographic and EKG studies. For this reason, idiopathic cardiomyopathy is not a simple medical condition that the Veteran is competent to etiologically relate to any medical disability or disorder as he is not shown to be qualified through education, training, or experience to interpret clinical findings of a disease process or interpret diagnostic studies and determine its etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Given the complex nature of the Veteran's disability his assertions do not constitute competent medical evidence that he suffers from a heart injury, myocardial infarction, cardiac arrest, or cardiovascular accident, that is a result of service. In summary, the only incident during the Veteran's service of any relevance to his appeal was the October 14, 2006 syncopal episode brought on by idiopathic cardiomyopathy after a run during inactive duty for training with the Army National Guard. The medical records of that incident during the drill weekend, including the hospitalization records documenting cardiac work-up, are evidence that the Veteran did not suffer any injury, acute myocardial infarction, cardiac arrest, or cerebrovascular accident during his inactive duty for training. Thus, the Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for idiopathic cardiomyopathy is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs