Citation Nr: 1318643 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 07-14 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for cardiomyopathy, claimed as secondary to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1981 to July 1983 and from May 1986 to March 1995, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In January 2010 a Travel Board hearing was held before the undersigned. A transcript of the hearing is associated with the record. In May 2010, the Board requested a medical expert opinion through the Veterans Health Administration (VHA) pursuant to 38 C.F.R. § 20.901(a). In a November 2011 decision, the Board denied service connection for cardiomyopathy (and dismissed a claim seeking a compensable rating for erectile dysfunction). The Veteran appealed that part of the Board's decision that denied service connection for cardiomyopathy to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court granted a Joint Motion for Partial Remand of the parties (the VA Secretary and the Veteran) and remanded the case to the Board for action consistent with the terms of the Joint Motion pursuant to 38 U.S.C.A. § 7252(a). In October 2012 the Board sought another medical expert opinion from VHA; a response was received in May 2013. FINDING OF FACT Competent evidence shows that the Veteran has cardiomyopathy that has been related medically to his service-connected diabetes mellitus in that it has been made permanently worse by the diabetes mellitus. CONCLUSION OF LAW Service connection for cardiomyopathy, as secondary to service-connected diabetes is warranted. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. As the decision regarding the claim of service connection is favorable to the Veteran, no further action is required to comply with the VCAA. II. Legal Criteria, Factual Background, and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in service. This may be accomplished by affirmatively showing inception during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (to include organic heart disease) may be presumed to have been incurred or aggravated in service if manifested within a specified period of time (one year for organic heart disease) after discharge from active duty. 38 U.S.C.A. § 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Certain listed chronic diseases (to which list ischemic heart disease was recently added) associated with exposure to certain herbicide agents (Agent Orange) may be service connected on a presumptive basis as due to exposure to such herbicides. A veteran who served in Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. Service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran alleges that his cardiomyopathy is secondary to his service-connected disabilities. His service-connected disabilities include: diabetes mellitus, type II, with erectile dysfunction and diabetic nephropathy; right upper extremity hemiparesis as a residual of a cerebrovascular accident associated with diabetes mellitus; right lower extremity peripheral neuropathy, associated with diabetes mellitus; left lower extremity peripheral neuropathy, associated with diabetes mellitus, and hypertension, associated with diabetes mellitus. The Veteran served on active duty from February 1965 to February 1968, to include a tour of duty in Vietnam. Service treatment records do not show findings related to a heart disorder, including cardiomyopathy, and a heart disorder is not shown to have been manifested in the initial year following his discharge from active duty. Following service, in November 2005, the Veteran suffered a cerebrovascular accident, at which time cardiomyopathy was first noted clinically. Private treatment records include January and June 2006 reports of EKG studies that were interpreted as abnormal (showing T wave abnormalities, and suggesting lateral ischemia should be considered). In June 2007, a VA physician noted that the Veteran was being treated for poorly controlled diabetes and that he had severe cardiomyopathy. On a July 2007 VA examination, it was found that there was no evidence of cardiovascular disease on evaluation, that the Veteran's hypertension was aggravated by his diabetes mellitus, and that the Veteran's cerebrovascular accident was at least as likely as not secondary to his diabetes mellitus. On May 2009 VA examination, the diagnoses included congestive cardiomyopathy, and the examiner opined that it was unlikely that the Veteran's cardiomyopathy was related to his diabetes mellitus in the absence of any coronary artery disease. Additional medical records on file include a November 2009 private physician's statement, reporting diagnoses of uncontrolled diabetes mellitus, hypertensive cardiovascular disease, severe cardiomyopathy, and status post cerebrovascular accident. In May 2010, the Board sought an advisory medical opinion from a VA cardiologist (a VHA opinion), requesting responses to the following questions: (a) is it at least as likely as not that the Veteran's heart disease (however diagnosed) is etiologically related to one of his service-connected disabilities?; and (b) may the Veteran's cardiomyopathy properly be characterized as ischemic heart disease? In response, a VA cardiologist in a June 2010 report concluded that after a review of the Veteran's records it was not at least as likely as not that the Veteran's heart disease was etiologically related to one of his service-connected disabilities including diabetes mellitus, hypertension, and residuals of cerebrovascular accident. He stated that the Veteran had cardiomyopathy but that its etiology was unknown, which was not an unusual finding. He also found that the Veteran's cardiomyopathy may not be characterized as ischemic heart disease. He stated that there was no evidence in the records to show coronary ischemia. If there had been evidence of coronary ischemia and such a condition was the cause for the cardiomyopathy, the cardiologist indicated that it could then be argued that diabetes had contributed to the coronary ischemia. As the VA cardiologist's opinion of June 2010 left unresolved the issue of whether the Veteran's cardiomyopathy was aggravated by a service-connected disability, the Board sought another VHA medical expert opinion. The Board requested that the cardiologist review the Veteran's claims file and answer the following question: is it at least as likely as not (a probability of 50 percent or higher) that the Veteran's cardiomyopathy is aggravated by one or more of his service-connected disabilities including diabetes mellitus, hypertension, and residuals of cerebrovascular accident? In a report dated in May 2013, the VHA examiner undertook a comprehensive review of the record, noting the Veteran's medical history, his service-connected disabilities, cardiology opinions in the record, and pertinent medical literature (copies of which were attached to the opinion). With rationale, the examiner concluded that the Veteran's mild non-ischemic cardiomyopathy was at least as likely as not aggravated by his underlying diabetes mellitus, and that the aggravating effects of diabetes mellitus on the cardiomyopathy were permanent until proven otherwise. He cited to three medical articles to support his conclusion, and explained that although the understanding of "diabetic cardiomyopathy" was incomplete, he believed the "existence of the underlying substrate of diabetes mellitus" likely aggravated the Veteran's cardiomyopathy. There is no other medical opinion relating to the aggravation question of record to the contrary. In view of the foregoing, there is satisfactory proof that the Veteran's cardiomyopathy is etiologically related to his service-connected diabetes mellitus. As noted, there are medical opinions of record that are unfavorable to the service connection claim on a direct basis and on a secondary (causal) basis. The Board also sought a medical opinion through the VHA to address the issue of service connection on a secondary (aggravation) basis, which found that the evidence was at least in equipoise that the service-connected diabetes mellitus aggravated the Veteran's cardiomyopathy. The comprehensive review and discussion of the VHA examiner, in the report dated in May 2013, is particularly probative and entitled to great weight. Accordingly, there is competent evidence to support the claim that the Veteran currently has cardiomyopathy that has been linked medically to the service-connected diabetes mellitus, in such a way that the cardiomyopathy has permanently been made worse by the service-connected diabetes mellitus. As aggravation of the claimed disability is proximately due to a service-connected disability, entitlement to service connection on a secondary basis under 38 C.F.R. § 3.310 is warranted. ORDER Service connection for cardiomyopathy, as secondary to service-connected diabetes, is granted. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs