Citation Nr: 1309528 Decision Date: 03/20/13 Archive Date: 04/01/13 DOCKET NO. 09-13 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a cardiac disability, to include atrial fibrillation due to unpronounced mitral valve insufficiency. 2. Entitlement to service connection for a low back disability. ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served in the Army Reserves from 1987 through November 2005, with a period of active duty from February 2002 to July 2004, and multiple periods of active duty for training (ACDUTRA) and inactive duty for training (IDT). This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Notice of this decision was provided in June 2008. In August 2012, the Board remanded these issues for further development and consideration. As discussed below, further development is necessary. The Veteran's paper claims file and Veteran's Virtual VA paperless claims file (a highly secured electronic storage system) should both be considered upon remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that his current low back disability and cardiac disability, including atrial fibrillation due to unpronounced mitral valve insufficiency, were incurred during or aggravated by his active military service. As he has several currently diagnosed heart disorders and he seeks service connection for heart-related symptoms, his claim includes all such disorders. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). As noted in the prior remand, service connection may be granted for disability resulting from disease or injury that is incurred in or aggravated during active duty for training (ACDUTRA), or from injury incurred in or aggravated by inactive duty training (IDT). Acute myocardial infarction, cardiac arrest, or cerebrovascular accident that occurred during a period of IDT is also subject to service connection. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (West 2002); 38 C.F.R. §§ 3.6, 3.303, 3.304; Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Board notes that certain evidentiary presumptions apply to all periods of active duty service, including a presumption of sound condition upon entrance into service, a presumption of aggravation during service of a preexisting disease or injury that undergoes an increase in severity during service, and a presumption of service incurrence for arthritis, cardiovascular-renal disease, and endocarditis (including all forms of valvular heart disease) if such condition(s) manifest to a level of 10 percent disabling or more within one year after the Veteran's separation from active duty. See 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. However, these presumptions do not apply to claims of service connection based on a period of ACDUTRA or IDT. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). Sufficient development has now been conducted to verify the Veteran's dates of active duty, ACDUTRA, and IDT service as it relates to his reported dates of injuries or diseases during service. In particular, the evidence is sufficient to determine the type of service, if any, during the reported injuries to the low back, as well as the initial diagnosis and work-up for atrial fibrillation, and subsequent treatment. The current records show that the Veteran was discharged from service effective in November 2005, and not in 2006 as he had reported. In addition, it appears that all of the Veteran's service treatment records have been obtained, including the enlistment and separation examinations, and treatment records dating from 1987 through 2005. However, he has referenced other treatment concerning the heart and back during relevant periods of service. Specifically, the Veteran has reported that, in October 2001 he was medically evacuated from Fort McCoy and was treated at Sparta Hospital and Gunderson Lutheran Hospital for heart attack-like symptoms that were determined to be atrial fibrillation. Service records indicate that he was on ACDUTRA from October 13 to 22, 2001, and that he was released from that training for medical reasons. The Veteran summarized his prior cardiac history, including the results of work-up in October 2001, in VA treatment records dated in March 2008. However, the October 2001 treatment records are not in the claims file. There is also an indication that the Veteran may have been followed by a private provider for his cardiac condition during service, including at some point after October 2001. Further, the Veteran has indicated that he had a vasovagal response and atrial fibrillation while blood work was being drawn for a physical in April 2005. There is an April 1, 2005 unusual incident report from Aurora Manitowoc Clinic that is consistent with this report, as well as the April 1, 2005 EKG reports. It is unclear if there are any further records available from this facility. Service records indicate that the Veteran was on inactive duty training (IDT) on April 1, 2005. Although the August 2012 VA examiner referenced a notation of atrial fibrillation in a record dated April 5, 2001 record, there is no such record in the claims file. Further, the Veteran has consistently stated that he was first diagnosed with atrial fibrillation in October 2001, and the examiner's summary appears consistent with the April 2005 records. Therefore, it appears that this examiner misidentified the record in question (inverting the day and year), and the Board finds that the reference to symptoms on April 5, 2001, actually refers to those shown on April 1, 2005. Additionally, during the August 2012 VA spine examination, the Veteran reported receiving treatment for his back in 2002 or 2003 at "GLNaval." He stated that this was when his back really began to bother him. As indicated by his DD Form 214, he was on active duty from February 2002 to July 2004. Accordingly, a remand is necessary to have the Veteran identify and authorize VA to obtain any pertinent outstanding records, or to provide such records himself. Further, although the Veteran was afforded VA examinations in August 2012 concerning his claimed cardiac and low back disabilities, those reports are inadequate. In addition to the suggestion of outstanding medical records, the examiner's opinions clearly only considered the Veteran's period of active duty from 2002 to 2004, and his prior period of ACDUTRA in 1987. The evidence of record includes many more verified periods of ACDUTRA and IDT service, including at times when the Veteran was treated for the claimed disabilities. As noted above, the Veteran was on ACDUTRA when he was worked up and first diagnosed with atrial fibrillation in October 2001. He was noted to have a recurrence of atrial fibrillation in July 2002, while on active duty. He was on IDT when another episode of atrial fibrillation was documented after having blood drawn on April 1, 2005, and EKGs were found to be grossly abnormal. However, as there is no indication of "injury" during this period of IDT (as opposed to disease), or that the Veteran suffered acute myocardial infarction, cardiac arrest, or cerebrovascular accident at that time, service connection may not be granted based on this period of IDT. See 38 C.F.R. § 3.6(a). The Board notes that the Veteran reported having rheumatic fever as a child with resulting heart murmur and mitral valve insufficiency during his service enlistment examination in 1987, as well as during multiple subsequent examinations. However, he was generally found to have a clinically normal heart prior to October 2001. During a December 1996 examination for over-40 heart screening, he denied any palpitations or irregular heartbeat, and EKGs showed sinus brachycardia. The Veteran was again noted to have a clinically normal heart in a September 2001 retention examination, and he was noted to have no residual or incapacitating problem due to the rheumatic fever, heart murmur, and mitral insufficiency. In a May 2002 service evaluation, the Veteran was noted to have mitral regurgitation since age 13 per echo, asymptomatic, and to have been on Coumadin briefly in October 2001 for a self-limited episode of atrial fibrillation. There was an objective heart murmur upon examination, and the assessment was history of mitral regurgitation and rheumatic fever. In an April 27, 2005 retention examination, the Veteran was found to have significant or disqualifying defects of cardiac risk factors and atrial fibrillation. An August 2005 Physical Review Board report found that he did not meet retention standards due to the April 1, 2005 abnormal ECG or EKG study and findings of rheumatic heart disease, mitral valve disease, possible left ventricular enlargement, and history of rheumatic fever (as well as other non-cardiac conditions). A permanent profile was issued, and the Veteran was medically disqualified from Reserves service effective in November 2005. After any available outstanding treatment records have been associated with the claims file, the claims file should be returned to the August 2012 VA heart examiner for an addendum report based on all lay and medical evidence. The examiner should address whether any current cardiac disability constitutes aggravation of a preexisting condition, or was otherwise incurred as a result of the Veteran's active military service. The examiner should be informed of the Veteran's verified periods of ACDUTRA and IDT service as pertinent to this claim. With regard to the back, the Veteran has reported that this condition first began in July 1989. He was treated for back pain in August 1989, during a period of ACDUTRA, when he reported having back problems in the past, and he was diagnosed with a pulled muscle. In a September 11, 1996 letter, a private medical doctor indicate that he was treating the Veteran for acute back strain, and he was to refrain from physical exertion for one month to allow for healing. The Veteran was not in a period of active service at the time of the letter, and there was no active duty, IDT, or ACDUTRA in September 1996 until two days later, on September 13. Despite these complaints, the Veteran denied recurrent back pain at service examinations in December 1991 and December 1996. He first reported recurrent back pain during a September 2001 service examination. As noted above, he reported during the August 2012 VA examination that his back really began to bother him in 2002 or 2003, which would have been during his period of active duty. There are no back complaints or treatment in the service records from 2002 to 2003, but there may be other outstanding records. The Veteran also received emergency care for back pain on January 8, 2005, which was during a period of IDT. He again reported recurrent back pain at a March 2005 retention examination, although the spine was found to be clinically normal in April 2005. He was discharged from Reserves service effective in November 2005. Post-service records indicate lumbar spine early arthritis, as shown by x-rays, in October 2007. After any available outstanding treatment records have been obtained, the claims file should be returned to the August 2012 VA examiner for an addendum report based on all lay and medical evidence. The examiner should address whether any cardiac or low back disability was incurred or aggravated as a result of the Veteran's active military service. The examiner should be informed of the pertinent verified periods of ACDUTRA and IDT service. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and request him to identify any pertinent, outstanding treatment records, and to complete an authorization form (VA Form 21-4142) for any non-VA records. In particular, he should be requested to identify any inpatient or outpatient records concerning the heart from Spartan Hospital and Gunderson Lutheran Hospital dated in October 2001, and from Aurora Manitowoc Clinic dated in April 2005, as well as any records concerning the low back from GLNaval dated in 2002 and 2003. Upon receipt of proper authorization, the RO/AMC should make attempts to obtain any outstanding Federal or private records. All records received should be associated with the claims file. If any records cannot be obtained, the Veteran should be notified of the attempts made and allowed an opportunity to provide the missing records. 2. After completing the above development, forward the entire claims file, including a copy of this remand, to the August 2012 VA examiner for an addendum opinion as to the etiology of the Veteran's current cardiac and lumbar spine disabilities. (If such examiner is not available, the file should be forwarded to another appropriate individual for an opinion. A new VA examination should be scheduled only if deemed necessary by the examiner.) Review of the claims file should be noted in the addendum report. The examiner should be notified of the verified periods of active service (as summarized herein). The examiner should respond to the following: (a) Concerning the heart: (i) For each of these questions, note that the Veteran's verified active service includes the period of ACDUTRA from October 13 to 22, 2001, as well as active duty from February 2002 to July 2004. (ii) Please identify the approximate date of onset of each currently diagnosed cardiac disability, to the extent possible. (iii) Is any current cardiac disability, including but not limited to atrial fibrillation, the result of aggravation (permanent worsening) of a preexisting condition beyond the natural progress of the disease during the Veteran's active service (including active duty, ACDUTRA during which there was relevant disease or injury, or IDT during which there was relevant injury)? Please discuss the significance or relationship of the Veteran's history of rheumatic fever, heart murmur, and mitral valve insufficiency or regurgitation to any current disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence and also by lay statements from the Veteran and others as to the nature, severity, and frequency of his observable symptoms over time. (iv) If any currently diagnosed cardiac disability is not related to a preexisting condition, was the current cardiac disability at least as likely as not (probability of 50 percent or more) incurred during active service? (v) If not, did any currently diagnosed cardiovascular-renal disease or endocarditis (including all forms of valvular heart disease) at least as likely as not manifest to a degree of 10 percent or more by July 2005 (i.e., within one year after the Veteran's discharge from active duty)? (b) Concerning the low back: (i) For each of these questions, note that the Veteran's active service includes the period of ACDUTRA from August 17 to September 1, 1989, active duty from February 2002 to July 2004, and IDT from January 8 to 9, 2005. (ii) Please identify the approximate date of onset of each currently diagnosed low back disability, to the extent possible. (iii) Was the Veteran's current low back disability at least as likely as not (probability of 50 percent or more) incurred or aggravated during a period of active service? This includes ACDUTRA with treatment for disease or injury of the back, and IDT with treatment for injury, as well as any disease or injury during active duty. (iv) If not, did the Veteran's lumbar spine arthritis at least as likely as not manifest to a degree of 10 percent or more by July 2005 (i.e., within one year after discharge from active duty)? The examiner should provide a rationale for each of the opinions that takes into account all lay and medical evidence, including the Veteran's reports of his history, the in-service injuries or events, and his current symptoms. If the examiner rejects the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. The RO/AMC should review the addendum report to ensure that they contain the information, opinions, and rationales requested in this remand. If they do not, another addendum should be requested. 4. After completing the above-described development, and any further development that may be indicated by any response received upon remand, readjudicate the Veteran's claims. If any benefit on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative. Allow an appropriate time for response. The, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. All claims 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. 2012). _________________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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).