Citation Nr: 1322370 Decision Date: 07/12/13 Archive Date: 07/18/13 DOCKET NO. 12-12 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for atrial fibrillation with bradycardia, status-post pacemaker insertion (claimed as a heart condition), claimed as secondary to service-connected posttraumatic stress disorder ("PTSD"). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from March 1943 to December 1945. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio, which, inter alia, denied the Veteran's service connection claim. The Board has previously considered this claim. In July 2012, the Board remanded the claim in order to obtain clarification from the clinician who performed the March 2011 VA examination as to whether the Veteran's heart disorder had been permanently aggravated by his service-connected PTSD. As the examiner complied with the Board's remand directives, the Board finds the addendum opinion to be adequate for purposes of adjudicating the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The most probative evidence of record demonstrates that the Veteran was not diagnosed with a chronic heart disorder in service or within one year of separation from service, and his current heart disorder is not otherwise shown to be caused or permanently aggravated by a disease, injury or incident of service, to include service-connected PTSD. CONCLUSION OF LAW A heart disorder was not incurred in, or aggravated by active service; a chronic heart disorder may not be presumed to be incurred in service, and was neither caused, nor aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307(a)(3), 3.309(a), 3.310(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary of VA (the "Secretary") during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. By means of a July 2010 pre-adjudication letter dated, VA informed the Veteran of the types of evidence needed in order to substantiate his service connection claim on both a direct and secondary basis, the division of responsibility between himself and VA for obtaining the required evidence, and asked him to provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also provided the Veteran with information concerning how VA establishes the disability rating and effective date elements of a claim. Thereafter, the Veteran's claim was readjudicated in an April 2012 Statement of the Case, and again in a December 2012 Supplemental Statement of the Case. B.) Duty to Assist The Board concludes that VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, and VA examination/opinion reports dated March 2011 and July 2012. Additionally, the claims file contains the Veteran's statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to his claim that have not already been obtained and associated with the claims folder. Review of the March 2011 VA examination report indicates that the VA examiner reviewed the claims file, obtained a history of symptomatology and treatment from the Veteran, performed a comprehensive examination, along with a review of diagnostic test results, and provided a sound basis for his opinion. However, as noted above, because he failed to provide an opinion as to whether the Veteran's PTSD had permanently aggravated the Veteran's heart disorder, in July 2012, the examiner provided an addendum to his examination report, in which he provided reasons and basis for why he believed the Veteran's heart disorder had not been permanently aggravated by his service-connected PTSD. Accordingly, the Board concludes that these reports, taken as a whole, are adequate upon which to base a decision in this case. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the claim has been consistent with the provisions of the VCAA. The appellant has been provided every opportunity to submit evidence and argument in support of his claim and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), aff'g Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including certain heart disorders, when manifested to a compensable degree of 10 percent or more within one (1) year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). That an injury was incurred in service is not enough; there must be chronic disability resulting from that injury. 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. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after military service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service- connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by, or (b) aggravated by a service-connected disability. Id.; see also Wallin v. West, 11 Vet. App. 509, 512 (1998). As noted above, the Veteran claims that his atrial fibrillation with bradycardia, status-post pacemaker insertion are the result of his service-connected PTSD, which was diagnosed during a VA examination in February 2002. Although the Veteran has not claimed that his current heart condition began during service or is the result of some incident of service, the Board observes that his service treatment records are void of any complaints of, treatment for, or a diagnosis of a heart disorder. His March 1943 service induction examination revealed normal cardiovascular findings, as did his December 1945 separation examination. Following service, there is no evidence that the Veteran sought treatment for a heart disorder until September 2003, when he was seen at the Huntington, West Virginia VA Medical Center ("VAMC") with complaints of an irregular heart beat that he had recently noticed. He was diagnosed with new onset atrial fibrillation, although, it was noted that he was asymptomatic. He was started on the anticoagulant medication, warfarin. At that time, it was also noted that he was being treated for hypertension. The evidence of record shows that the Veteran was not treated for a heart disorder again until six years later, in September 2009, when he underwent surgery for placement of a pacemaker due to symptomatic bradycardia. Later than month, during a follow-up cardiology appointment, he was diagnosed with sick sinus syndrome (abnormal heart rhythms), atrial fibrillation, slow ventricular rate and symptomatic bradycardia. In February 2011, the Veteran was afforded a VA heart examination, at which time, the examiner noted that he was no longer symptomatic and had experienced no further cardiac complaints since the insertion of his pacemaker. It was noted that he was taking medication for his heart condition and for hypertension. The diagnosis was atrial fibrillation with symptomatic bradycardia treated with a pacemaker. The examiner opined that the Veteran's heart disorder was neither caused by, nor related to his service-connected PTSD. In this respect, he noted that a review of medical literature through the National Institutes of Health data base revealed no articles that related atrial fibrillation to PTSD. He added that, in his experience as a physician, he could not relate any specific physiologic cause between atrial fibrillation and PTSD. Thus, he opined that the Veteran's heart disorder was less likely than not caused by, or related to his service-connected PTSD. As noted above, in July 2012, the February 2011 VA examiner provided an addendum to his prior opinion to address the question of whether the Veteran's PTSD had permanently aggravated his heart disorder. In this regard, the examiner again observed that in 2009, the Veteran became symptomatic from atrial fibrillation that was noted along with bradycardia. He opined that the combination of these two conditions was likely the cause of those symptoms at that time by significantly decreasing his cardiac output and thus starving his brain of oxygen. He noted that after the insertion of the pacemaker, the Veteran's symptoms improved. He further noted that the Veteran was having a lot of stress in 2009 related to his late wife's illness. The examiner also noted that in 2004, a clinician reported that the Veteran's PTSD symptoms had improved with treatment. He concluded that, after reviewing the medical literature for the effects, if any, of PTSD on atrial fibrillation, he had found no articles. Based on a review of the complete evidence of record, the Board concludes that the competent and probative evidence is against granting the Veteran's claim of entitlement to service connection for a heart disorder, to include atrial fibrillation with bradycardia, status-post pacemaker insertion. In this regard, the Board has considered whether service connection is warranted on a direct, presumptive or secondary basis. With regard to granting service connection on a direct basis, as noted above, although the Veteran currently has a heart condition, there is no probative evidence that he had any complaints of symptoms suggestive of a heart disorder during active duty service, nor was he diagnosed with any cardiovascular disorders in service. Moreover, the Veteran has never claimed that his heart condition is a direct result of military service. Based on the VA examiner's report and subsequent addendum, the Board also concludes that service connection for a heart disorder as secondary to PTSD is not warranted. In this regard, the Board again notes that a competent VA examiner, after reviewing the complete evidence of record, as well as the pertinent medical literature, concluded that there was no relationship between the Veteran's PTSD and his atrial fibrillation with bradycardia, status-post pacemaker insertion. Moreover, in light of the absence of medical treatment in the years immediately following service that would possibly show that the Veteran had been diagnosed with a heart disorder within the one-year period following service separation in December 1945, the Board also finds that service connection for a heart disorder on a presumptive basis is not warranted. In addition to the medical evidence, the Board has also considered the Veteran's personal statements in support of his claim. The Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, although the Veteran is competent to report symptoms such as heart palpitations, there is no evidence that he has medical knowledge or training that would permit him attribute those symptoms to a complex, psychiatric disorder, like PTSD. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). As such, although the Board acknowledges the Veteran's belief that his current disease is the result of his PTSD, his statements in this regard are not deemed competent. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for atrial fibrillation with bradycardia, status-post pacemaker insertion on a direct, presumptive and secondary basis. (CONTINUED ON NEXT PAGE) In arriving at the decision to deny the claim, the Board has considered the applicability of the "benefit-of-the-doubt" rule. However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi; Gilbert v. Derwinski, supra. ORDER Entitlement to service connection for atrial fibrillation with bradycardia, status-post pacemaker insertion (claimed as a heart condition), claimed as secondary to service-connected PTSD, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs