Citation Nr: 1308544 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 07-00 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES Entitlement to service connection for periodic accelerated heart rate, to include as due to undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from November 1986 to July 1995 with service in Southwest Asia from November 1990 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge in June 2008 at the RO. A transcript of the hearing is of record. In November 2008, the Board denied the claim for entitlement to service connection for periodic accelerated heart rate. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court). In January 2011, the Court granted a Joint Motion for Remand (JMR) filed by the parties and vacated and remanded the claim for service connection for periodic accelerated heart rate. The appeal was returned to the Board and in August 2011 was remanded for further development. The claim has now returned to the Board. The January 2011 JMR and August 2011 Board remand also addressed the issues of entitlement to service connection for sleep apnea, numbness of the lower extremities, headaches, and swelling of the lower extremities. In a December 2012 rating decision, service connection for fibromyalgia was awarded with an initial 20 percent evaluation assigned effective June 5, 2003. The rating decision specifically noted that the grant of service connection included the Veteran's claimed sleep apnea, numbness and swelling of the lower extremities, and headaches as manifestations and symptoms of fibromyalgia. Therefore, the full benefit sought by the Veteran has been awarded and these claims are no longer before the Board. Similarly, although the claim for entitlement to service connection for irritable bowel syndrome (IBS) was remanded by the Board in its August 2011 decision, service connection for this disability was granted in a June 2010 rating decision. An initial 10 percent evaluation was assigned effective June 5, 2003. The award of service connection represents a full grant of the benefit sought on appeal, and this issue is also no longer before the Board. The Board's August 2011 decision also remanded a claim for entitlement to an increased initial rating for hemorrhoids. The Board found the current record was unclear regarding what development had been completed since a previous remand in November 2008. Review of the claims file shows that the Board denied the claim for entitlement to an initial compensable rating for hemorrhoids in October 2010. The Veteran and his representative received notice of the Board's decision and no appeal was filed. The October 2010 Board decision is therefore final with respect to the claim for an increased rating for hemorrhoids, and this claim is not currently before the Board. See 38 C.F.R. § 20.1100. The Veteran has reported that he is not able to work due to service-connected fibromyalgia. The issue of entitlement to a total disability rating due to individual employability resulting from service-connected disability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's periodic accelerated heart rate, characterized as tachycardia, is not a chronic disability under the law. 2. Tachycardia has not manifested to a degree of 10 percent or more. CONCLUSION OF LAW Service connection for periodic accelerated heart rate, to include as due to undiagnosed illness, is not warranted. 38 U.S.C.A. §§ 1110, 1117, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.317, 4.104, Diagnostic Code 7010 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that service connection is warranted for an undiagnosed illness manifested by a periodic accelerated heart rate as it was incurred due to active duty service in the Persian Gulf. He testified that he first manifested the condition during active service following his return from Southwest Asia and the symptoms have continued to the present day. The Board will first determine whether service connection is warranted for the claimed disability as directly related to active service under 38 C.F.R. § 3.303 (2012). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet.App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013) (holding that a finding of continuity of symptomatology to presume service connection for a chronic disease applies only to the diseases listed at 38 C.F.R. § 3.309(a) (2012)). After review of the evidence of record, the Board finds that the evidence does not establish the presence of a chronic disability capable of service connection. Service treatment records document several instances of treatment and complaints for an accelerated heart rate, but do not contain medical evidence of a chronic disability to account for the Veteran's complaints. In May 1994, the Veteran reported to the emergency room (ER) of the Bliss Army Community Hospital for treatment of daily episodes of heart palpitations. An EKG was normal and the treating physician suspected the Veteran's symptoms were due to anxiety, nicotine, or caffeine. Testing with a Holter monitor was performed several days later as a follow-up, but normal sinus rhythm was observed and the test was essentially normal. The Veteran presented again a month later in June 1994 with reports of an increased heart rate and was prescribed Atenolol. He experienced some relief with medication, but experienced physical side effects and discontinued use. In July 1994, a physician characterized the Veteran's complaints as tachycardia and he was referred for a cardiology consultation. A full cardiology work-up was completed in September 1994, including an EKG and stress test, but the evaluation was deemed normal. The Veteran returned in December 1994 with complaints of palpitations and his physician strongly suspected "functional problems" as the cause. Thus, service records document multiple complaints of an accelerated heart rate and a finding of tachycardia, but objective testing for the underlying cause of the symptom was consistently negative. Post-service medical records also do not establish a chronic disability. Upon VA examination in June 2003, the Veteran was diagnosed with suspected paroxysmal supraventricular tachycardia, but this finding was not based on any objective medical testing. In fact, cardiac testing performed throughout the claims period has been entirely negative for findings of a chronic disability. The Veteran reported to the Nashville VA Medical Center (VAMC) in October 2006 with complaints of chest pain, but an EKG was normal. A VAMC cardiology consultation in November 2009 also demonstrated no palpitations during Holter monitor and EKG testing. At that time, the Veteran reported a history of supraventricular tachycardia, but the only diagnosis rendered by the VA cardiologist was recurrent tachycardia palpitations. Similarly, the January 2007 VA examiner did not diagnose any chronic disability to account for the finding of episodic tachycardia. The October 2011 VA examiner noted an initial diagnosis of supraventricular arrhythmia, but physical examination of the Veteran did not indicate any arrhythmia or other cardiac abnormalities. An EKG, echocardiogram, and Holter monitor test reviewed in conjunction with the examination were also negative for abnormalities. Most recently, a VA physician provided an opinion against the claim in July 2012, concluding that the Veteran's extensive cardiac evaluations throughout the claims period were normal with no evidence of supraventricular tachycardia. Although the objective medical evidence does not establish the presence of a chronic disability manifested by tachycardia, the Veteran has reported experiencing periodic episodes of accelerated heart rate since active duty service. He testified in June 2008 that he had a 15 year history of irregular heart beat and clarified that the episodes did not follow a set pattern. The Veteran's lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Whether lay evidence is competent and sufficient to establish a diagnosis in a particular case is a fact issue to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's statements are competent to establish the presence of tachycardia, but do not demonstrate the presence of a current chronic disability under the law. Tachycardia is defined as excessive rapidity in the action of the heart. See Dorland's Illustrated Medical Dictionary, 31st Edition (2007) at page 1890. The Veteran is competent to identify and explain the symptoms that he observes and experiences (such as tachycardia) but a chronic disability in this case requires more than simple observation of symptoms. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's accelerated heart rate could be the result of any number of medical etiologies affecting multiple systems of the body and clearly requires specialized medical training and expertise to properly identify the cause. See Jandreau 1376-1377 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-309 (2007) (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). In addition, the Veteran's claim is not supported by a diagnosis by a medical professional. Although the record contains sufficient evidence to demonstrate tachycardia, the Veteran has not been diagnosed with an underlying disability to account for the symptom of a periodic accelerated heart rate. As noted above, all objective testing performed during and after service has been negative for abnormalities and none of his treating physicians have diagnosed a chronic disability manifested by tachycardia. The June 2003 VA examiner suspected the presence of paroxysmal supraventricular tachycardia, but no medical evidence was found to support this diagnosis. The VA physician who reviewed the record in its entirety in July 2012 also provided an opinion definitely ruling out supraventricular tachycardia. The Board therefore finds that while the Veteran's lay testimony has established the presence of the symptom of tachycardia, there is no competent medical evidence of an underlying chronic disability. A symptom such as tachycardia alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet App 282 (1999), aff'd Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Absent proof of a chronic disability, there can be no valid claim. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Degmitech v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection on a direct basis. Although service connection is not warranted for tachycardia under 38 C.F.R. § 3.303, the Veteran also contends that service connection is warranted for his accelerated heart rate as an undiagnosed illness in accordance with 38 C.F.R. § 3.317. As noted above, the Board has determined that tachycardia is not a chronic disability; however, 38 C.F.R. § 3.317 only requires that the record establish objective indications of chronic disability. Objective indications of a chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(2)(ii)(3). In addition, cardiovascular signs or symptoms are specifically listed as a manifestation of an undiagnosed illness capable of service connection. 38 C.F.R. § 3.317(b). Thus, the Board will determine whether service connection is warranted for tachycardia as a sign or symptoms of an undiagnosed illness. VA is authorized to pay compensation to any Persian Gulf veteran suffering from a "qualifying chronic disability." A "qualifying chronic disability," includes (a) an undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2)(B) (West 2002). To obtain service connection for an undiagnosed illness or combination of undiagnosed illnesses, a veteran needs to show (1) that he or she is a Persian Gulf veteran; (2) who exhibits objective indications of chronic disability resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed in paragraph (b) of 38 C.F.R. § 3.317; (3) that have become manifest either during active military, naval or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016 and (4) that such symptomatology by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 (West 2002); 38 C.F.R. § 3.317(a) (2012). Manifestations of an undiagnosed illness or multisymptom illness include, but are not limited to, fatigue, headache, muscle pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, or abnormal weight loss. 38 C.F.R. § 3.317(b). Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period are considered chronic. 38 C.F.R. § 3.317(a)(ii)(4). The Veteran served in Southwest Asia from November 1990 to December 1991. As discussed above, he has also reported a consistent history of a periodic accelerated heart rate since May 1994, when he was treated for heart palpitations during service. Although his complaints have been characterized by various health care providers as tachycardia, they have not been attributed to any known clinical diagnosis. Therefore, the Veteran's competent reports of a rapid heart rate constitute objective indications of a chronic disability due to an undiagnosed illness. The remaining question before the Board is whether the objective indications became manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016. The Veteran's accelerated heart rate was clearly not manifest during his service in Southwest Asia. The Veteran served in Kuwait for over a year from November 1990 to December 1991. The first documented complaint of heart palpitations in the service record dates from May 1994, when the Veteran was seen at Bliss Army Community Hospital. He testified at the June 2008 hearing that he first noticed the onset of a rapid heartbeat near the end of 1992 or the beginning of 1993, several years after his return from Southwest Asia. The competent medical and lay evidence therefore establishes that the Veteran's claimed undiagnosed illness did not manifest during active military service in the Southwest Asia theater of operations during the Persian Gulf War. Service connection is only possible for the claimed undiagnosed illness if the evidence establishes that it manifested to a degree of 10 percent or more not later than December 31, 2016. Tachycardia is not listed in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2012). However, for the purposes of determining the appropriate rating for the claimed rapid heart rate, the Board will use Diagnostic Code 7010 pertaining to supraventricular arrhythmias. Under this diagnostic code, a 10 percent evaluation is appropriate with permanent atrial fibrillation (lone atrial fibrillation), or; one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by ECG or Holter monitor. A maximum 30 percent evaluation is warranted with paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor. 38 C.F.R. § 4.104, Diagnostic Code 7010. The Board finds that the Veteran's tachycardia does not most nearly approximate the criteria for a 10 percent rating under Diagnostic Code 7010. The Veteran has reported that he experiences episodes of accelerated heart rate several times a year. He testified in June 2008 that there was no set pattern to his palpitations and he was not under any medical treatment for its management. The Veteran is competent to report episodes of rapid heartbeat, but Diagnostic Code 7010 requires objective evidence of tachycardia documented by ECG or heart monitor. As discussed above, all objective cardiac testing throughout the claims period has been within normal limits. An EKG and Holter monitor report from May 1994 showed normal sinus rhythm and similar findings were made during a cardiac consultation at the VAMC in November 2009 and upon VA examination in October 2011. As there is no documentation of tachycardia upon ECG or Holter monitor at any time during the claims period, the Board cannot conclude that the Veteran's accelerated heart rate has manifested to a degree of 10 percent or more. Thus, service connection for the claimed periodic accelerated heart rate is not possible under 38 C.F.R. § 3.317 and the criteria pertaining to undiagnosed illnesses. As service connection is also not warranted for tachycardia as a chronic disability directly due to active duty service, the claim must be denied. Duties to Notify and Assist VA has duties to notify and assist claimants 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). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify was satisfied through letters furnished to the Veteran in December 2003 and December 2006. The claim for service connection was most recently readjudicated in the December 2012 SSOC. Therefore, any timing deficiency has been remedied. Mayfield, 444 F.3d at 1333. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the Veteran, including service treatment records and records of VA treatment. The Veteran reported undergoing treatment at Beaumont Army Medical Center and Bliss Army Health Center, but August and September 2011 responses from these facilities indicated that they had no records pertaining to the Veteran. Although recent attempts to obtain these records were unsuccessful, review of the service treatment records appears to include clinical records from both facilities pertaining to the Veteran's claimed accelerated heart rate. The Veteran has not reported undergoing any other private or federal treatment of the disability on appeal. Additionally, he was provided a proper VA examination in October 2011 and a medical opinion addressing the nature of his claimed condition was obtained in July 2012. For the reasons set forth above, the Board finds that VA has complied with the notification and assistance requirements. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for periodic accelerated heart rate, characterized as tachycardia, to include as due to undiagnosed illness is denied. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs