Citation Nr: 1321827 Decision Date: 07/09/13 Archive Date: 07/18/13 DOCKET NO. 09-46 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for sinus tachycardia, to include as secondary to a service-connected disability. 2. Entitlement to an initial disability evaluation in excess of 10 percent for an acquired psychiatric disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from May 1982 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to an increased evaluation for an acquired psychiatric disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record, to include competent medical evidence and lay evidence, is at least in equipoise as to whether the Veteran has sinus tachycardia that was caused by his service-connected psychiatric disorder. CONCLUSION OF LAW The Veteran's sinus tachycardia is proximately due to a service connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b) (2010); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). A claim for secondary service connection requires medical evidence that connects the asserted secondary disorder to the service-connected disability. Velez v. West, 11 Vet. App. 148, 158 (1998). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with sinus tachycardia. He has a service-connected acquired psychiatric disorder. The first and second elements of a secondary service connection claim are satisfied. Wallin, 11 Vet. App. at 512. The Veteran underwent a VA examination for his heart condition in April 2008. The examiner diagnosed the Veteran with sinus tachycardia but did not provide an etiology opinion. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore the April 2008 examination is inadequate and is not probative evidence. The Veteran underwent a second VA examination in May 2010. He reported the onset of heart palpitations in 2004. The examiner diagnosed sinus tachycardia due to a multifactorial etiology including asthma, caffeine abuse, and his service-connected anxiety disorder. The examiner concluded that the Veteran's service-connected obstructive sleep apnea was less likely to cause sinus tachycardia because it was well controlled. As a result, it was unlikely that he would have hypoxemia at night because he used a CPAP machine. He had no snoring, daytime somnolence, or gasping at night. The May 2010 examination provides probative evidence in support of the Veteran's claim because the examiner found that the Veteran's service-connected psychiatric disorder contributed to his sinus tachycardia. The Veteran received treatment for his heart condition at VA facilities. In November 2009, a VA physician stated that the Veteran's sinus tachycardia was "most likely" caused by an elevated sympatho-adrenergic tone with over-imposed physiologic causes such as asthma and beta adrenergic agonists. This record provides probative evidence against the Veteran's claim. In March 2010, the Veteran reported to his VA physician that his tachycardia began in 2004. The examiner diagnosed the Veteran with sinus tachycardia and stated that there were multiple possible contributing factors such as poorly controlled asthma, caffeine abuse, and his service-connected anxiety disorder that was not well controlled. The March 2010 VA treatment record provides probative evidence in support of the Veteran's claim. In July 2010, a VA physician noted that the Veteran had a history of aseptic meningoencephalitis with multisystemic inflammatory response. The examiner concluded "[f]rom that event he has developed multisystemic problems include[]ing [s]inus [t]achycardia." This statement provides probative evidence against the claim. Although further medical inquiry could be undertaken towards development of the claim, the Court has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. It is not permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this case, the VA examiner and a VA physician who treated the Veteran in March 2010 found that the Veteran's service-connected psychiatric condition contributed to his development of sinus tachycardia. Two VA physicians determined that other causes were more likely. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown , 5 Vet. App. 413, 421 (1993). The nexus requirement of a secondary service connection claim is satisfied. Wallin, 11 Vet. App. at 512. Service connection for sinus tachycardia is granted. Given the granting of the benefit, any further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would not avail the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). ORDER Service connection for sinus tachycardia is granted. REMAND While the Board regrets the further delay that a remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. The Veteran submitted a September 2009 decision from the Social Security Administration (SSA). The SSA found that he was disabled in part due to his service-connected psychiatric disorder. The SSA decision referenced a private examination conducted by Dr. P., which is not of record. The RO has not attempted to obtain the Veteran's SSA records. When VA is put on notice of the existence of SSA records, as here, VA must seek to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493, 494 (1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992) (VA has a duty to acquire both the SSA decision and the supporting medical records pertinent to a claim); Murincsak v. Derwinski, 2 Vet. App. 363 (1992) (medical records upon which an award of SSA disability benefits have been predicated are relevant to VA claims for service connection and an increased rating). As such, all relevant SSA records need to be obtained and associated with the claims file. Further, the Veteran submitted private psychiatric treatment records from the Instituto Psicoterapeutico de P. R. and Inspira in September 2009 (See Volume 2 of the claims file). These records, totaling 24 pages, are in Spanish. Since this case is being remanded for another reason, the RO should have the records translated into English before returning this file to the Board. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain a copy of the decision to grant SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for the records is unsuccessful, and further attempts to obtain them would be futile, the RO should document this in the claims file and notify the Veteran in accordance with 38 C.F.R. § 3.159(c)(2) and (3). 2. The 24 pages of treatment records that are in Spanish must be translated into English. Copies of the translated documents must be associated with the claims file. 3. After the above has been completed, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs