Citation Nr: 1319075 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-40 644 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for heart disease, secondary to service-connected diabetes mellitus, type II. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which denied service connection for heart disease. The Veteran testified before the undersigned at a March 2013 Travel Board hearing. The hearing transcript is of record. The Veteran submitted additional medical evidence in April 2013, which has not yet been considered by the RO. However, the Veteran waived initial RO consideration of that evidence during his Travel Board hearing. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on his part. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that his currently demonstrated heart disease was caused by his service-connected diabetes mellitus (DM). The medical evidence of record shows that the Veteran has a current diagnosis of heart disease. Specifically, private treatment records show that in 2006, the Veteran was diagnosed with concentric left ventricular hypertrophy, mild to moderate calcific aortic stenosis, and trace aortic regurgitation. See July 2006 treatment records from the Heart Hospital of Allegheny General. He was diagnosed by echocardiogram in 2008 with left ventricular hypertrophy, mildly dilated left atrium, mild aortic regurgitation, and moderate stenosis. See February 2008 treatment records from Carleton Cardiology Associates. As discussed further below, he was also diagnosed by his private cardiologist with valvular disease and cardiac arrhythmias. See May 2009 statement from S.I., M.D. During a July 2008 VA examination, the Veteran was diagnosed with mild essential hypertension, mild left ventricular hypertrophy, secondary to hypertension, mild aortic regurgitation, and mild mitral regurgitation. He was diagnosed on VA examination in November 2010 with moderate aortic stenosis, and asymptomatic ventricular arrhythmia. The July 2008 VA examiner opined that it was not at least as likely as not that the Veteran's hypertension or minimal cardiac pathology was related to his diabetes, as his diabetes was found seven years after his hypertension diagnosis was made. Although the examiner gave an explanation, albeit very minimal, for his negative opinion with regard to the etiology of the Veteran's hypertension, he did not explain why he believed the Veteran's "minimal cardiac pathology" was not related to his diabetes. Accordingly, the Board finds that the opinion is incomplete and therefore, lacks probative value and is inadequate for rating purposes. During a November 2010 VA examination, the Veteran was diagnosed with hypertension, DM, and ventricular arrhythmia. The examiner noted that based on his history and the results of his physical examination, the Veteran did not have coronary artery disease, but he did have mild to moderate aortic stenosis, and ventricular arrhythmia, which was asymptomatic. The examiner did not give an opinion on the etiology of the Veteran's diagnosed aortic stenosis or ventricular arrhythmia. A VA opinion was obtained in March 2012. The examiner, a physician's assistant, noted that the Veteran was diagnosed with hypertension in 1998, which was controlled with medication, and DM in 2005. He also noted that the Veteran had been diagnosed with valvular disease, but that there was no evidence of coronary artery disease or ischemic heart disease. The examiner opined that, as the Veteran's DM had been under control, there was no indication of the disease aggravating his cardiac condition, and, therefore, there is no direct or proximate reason for his coronary condition being the result of his service-connected diabetic condition. The Board finds that the examiner's conclusion that the Veteran's DM could not have aggravated his cardiac condition because it was under control is not persuasive. In this regard, the DM was still present, whether controlled or not, and therefore, it is plausible that it could have caused or aggravated another medical condition. The Board also notes that although the examiner concluded that the Veteran's DM had not aggravated the Veteran's cardiac condition because it had been under control, he did not give a rationale for his finding that the Veteran's cardiac condition was not directly caused by his DM. Accordingly, this opinion is also incomplete. For the foregoing reasons, the Board finds that the March 2012 VA opinion lacks probative value and is inadequate for rating purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Veteran submitted a May 2009 statement from his private cardiologist, S.I., M.D. in support of his claim. Dr. S.I. noted that he first treated the Veteran in February 2008, at which time, he had some problems with hypertension and was not optimally controlled on his medications. He also noted that the Veteran had been diabetic for a number of years. The doctor also indicated that the Veteran had undergone a number of cardiac tests, which revealed that he had some degree of valvular disease, and some cardiac arrhythmias, which were not of any significant consequence, but no evidence of an underlying significant coronary vascular disease. Dr. S.I. opined that the Veteran's cardiovascular issues were probably, if not totally, at least partially related to his diabetic condition, which preceded them. In rendering this opinion, he noted that being diabetic automatically increases any person's cardiovascular risks and the frequency of development of cardiovascular disease. A March 2013 statement from Dr. S.I. was also submitted in support of the Veteran's claim. He again opined that the Veteran's cardiovascular issues are related, if not totally, at least partially, to his diabetic condition, which preceded them. In rendering this opinion, he noted that it has taken quite a number of years for the Veteran's diabetes to become well-controlled despite the Veteran's and his endocrinologist's continued efforts and changes in treatment. He noted further that, as previously explained; being diabetic automatically increases one's cardiovascular risk and the frequency of development of cardiovascular complications. The Board finds that Dr. S.I.'s opinions that the Veteran's cardiovascular issues are "related, if not totally, at least partially, to his diabetic condition which preceded them" are equivocal as to whether the Veteran's heart disease was directly caused or aggravated by his service-connected DM. The equivocal nature of these opinions diminishes their probative value. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Under McLendon v. Nicholson, in disability compensation claims, VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the Veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. The Board also notes that as discussed above, in addition to his diagnosed heart disease (aortic stenosis, aortic regurgitation), the Veteran has also been diagnosed with several other cardiac conditions, including hypertension, cardiac arrhythmias, and ventricular hypertrophy. No probative medical opinion regarding the relationship of each of these diagnosed cardiac conditions, if any, to the Veteran's service-connected DM has been obtained. Under these circumstances, the Board finds that the claim should be remanded for a medical examination and opinion to determine whether the Veteran's current heart disease/cardiac conditions were caused or aggravated by his service-connected diabetes mellitus. The appellant is advised that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Schedule a VA examination by an appropriate medical doctor to obtain an opinion as to the relationship, if any, between any current heart disease/cardiac condition, to include aortic stenosis, aortic regurgitation, ventricular hypertrophy, valvular disease, cardiac arrhythmias, mitral regurgitation, and hypertension, and the Veteran's service-connected diabetes mellitus. The claims file should be provided to the examiner in connection with the examination. The examiner should conduct all indicated tests and studies. After a review of the record on appeal and an examination of the claimant, the examiner should provide answers to the following questions: a. Is it at least as likely as not (50 percent probability or greater) that any current heart disease/cardiac condition (to specifically include aortic stenosis, aortic regurgitation, ventricular hypertrophy, valvular disease, cardiac arrhythmias, mitral regurgitation, and hypertension) was caused by the Veteran's service-connected diabetes mellitus? b. Is it at least as likely as not (50 percent probability or greater) that any current heart disease/cardiac condition (to specifically include aortic stenosis, aortic regurgitation, ventricular hypertrophy, valvular disease, cardiac arrhythmias, mitral regurgitation, and hypertension) was aggravated by his service-connected diabetes mellitus? If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge have been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner is advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is found to be present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. In providing answers to the above questions, the examiner is also advised that the term "at least as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as to find against causation. "More likely" and "as likely" support the contended relationship; "less likely" weighs against the claim. A complete rationale with citation to relevant evidence found in the claims file should be provided for each opinion offered. 2. The RO/AMC should thereafter readjudicate the claim for service connection for heart disease as secondary to service-connected diabetes mellitus. If any benefit sought on appeal remains denied, the Veteran and his representative should be provide a supplemental statement of the case, and a reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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). _________________________________________________ BARBARA B. COPELAND 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).