Citation Nr: 1322957 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-32 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for aortic valve disease, claimed as a heart condition. REPRESENTATION Appellant represented by: Michelle D. Powers, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1973, and from March 1974 to October 1981. This appeal to the Board of Veterans' Appeals (Board) arose from a rating decision of the Columbia, South Carolina Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2010, a Board videoconference hearing was held before the undersigned Veteran's Law Judge; a transcript of the hearing is of record. In a September 2011 decision, the Board reopened the claim of entitlement to service connection for aortic valve disease and denied the claim on the merits. The Veteran, in turn, appealed to the United States Court of Appeals for Veterans Claims (the Court). In March 2012, counsel for VA's Secretary and the Veteran's attorney (the parties) filed a Joint Motion for Partial Remand with the Court. By Order dated later that month, the Court granted the motion, vacating the Board's denial of the claim for service connection and remanding the matter to the Board for further proceedings consistent with the Joint Motion. In January 2013, in accordance with 38 U.S.C.A. § 7109 and 38 C.F.R. § 20.901(d), the Board requested an advisory medical opinion from a physician who is not employed by VA (an independent medical expert or IME). In February 2013, the Board provided the Veteran and his attorney a copy of the opinion and afforded them the opportunity to submit additional argument and evidence. The Veteran's attorney indicated that they did not receive a copy of the initial request for an IME opinion and requested an extension of time to submit additional medical evidence or argument. An extension was granted until May 22, 2013, but no additional evidence or argument was received. FINDINGS OF FACT 1. The Veteran's preexisting aortic heart disease as likely as not increased in severity during his second period of service. 2. The evidence does not clearly and unmistakably demonstrate that the increase in the Veteran's preexisting aortic heart disease was due to the natural progression of the disease. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, aortic heart disease, which pre-existed service, was aggravated by active service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Given the favorable disposition of the claim of entitlement to service connection, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. Factual Background The Veteran's service treatment records reveal that on January 1971 pre-induction examination, his heart and vascular system were found to be normal. On May 1973 separation examination, the heart and vascular system were again found to be normal, with no heart related problems noted, and the Veteran affirmatively reported that he was in excellent health. On subsequent January 1974 reenlistment examination, the Veteran was noted to have a low pitched systolic murmur radiating to the left axilla and a high pitched diastolic murmur around the 1st degree aortic area. Subsequent records show a diagnosis of aortic insufficiency with symptoms such as chest pains, dizziness and shortness of breath, and the Veteran affirmatively reported that he had had a heart murmur since birth. In September 1975, it was noted that the Veteran was not participating in physical training as he would get fatigued easily with exertion. A September 1975 physical profile record shows that he was given a profile requiring that he not engage in any strenuous physical activity for more than 20 minutes due to his aortic insufficiency. In September 1976, the Veteran was diagnosed with aortic valvular disease, with no evidence of myocardial infarction. A May 1978 echocardiogram showed indirect signs of aortic valve insufficiency. In October 1978, it was noted that the Veteran was having problems with his unit over the current status of his exercise profile. The Veteran reported that he experienced dizziness and dyspnea with running. He also had experienced these symptoms during treadmill testing. The diagnostic assessment was aortic insufficiency, mild in degree and the examining medical practitioner recommended that the Veteran continue his physical training and weight reduction. However, he did not think that the Veteran should engage in the regular physical training and standardized exertion of his unit. Consequently, the Veteran was assigned a permanent profile to exercise at his own pace. On August 1981 separation examination, the Veteran was noted to have a grade II/VI systolic murmur. Otherwise, he was noted to be in good health. Post-service, a March 1983 medical certificate shows a diagnosis of aortic insufficiency and possible angina pectoris. The Veteran reported left chest pain radiating down the left arm, numbness and burning sensation in the mid lower back and a swollen left leg. A subsequent April 1983 medical certificate reflects a diagnosis of presumptive angina. A May 1983 rating decision denied service connection for a heart condition, finding that the evidence did not show that the Veteran had any current cardiovascular disability. A January 1990 private cardiology evaluation reflects that the Veteran had been followed intermittently for his heart murmur since he had been discharged from service. He currently had no cardiovascular symptoms. His exercise capacity was good and he was working full time. The diagnostic impression was aortic valve disease, borderline cardiomegaly and asymptomatic cardiac status. A February 1994 private cardiology work-up produced a diagnostic impression of "normal exam, healthy male." VA and private treatment records from 2000 to 2009 show that the Veteran has been receiving ongoing treatment and evaluation for cardiovascular problems. A December 2000 private echocardiogram showed relatively mild aortic valve stenosis and conduction abnormalities consistent with second degree heart block. A December 2000 private discharge summary shows that the Veteran was hospitalized over four days for a symptomatic second degree heart block. A dual chamber permanent pacemaker was implanted. On November 2001 VA examination, the Veteran reported that he was born with a heart murmur and the doctors told his parents that he would not make it out of the hospital. He indicated that he had always been employed post-service, working as a mechanic and doing physical labor, and that he had not had any problems until two years prior when he experienced generalized weakness, tiredness, sweats and chest tightness with shortness of breath. He subsequently passed out, was evaluated at the hospital and was diagnosed with aortic valve disease. Examination of the heart showed a loud systolic and diastolic murmur, which was heard best at the base and that radiated to the neck and was associated with a water hammer pulse. The examiner noted that an echocardiogram performed in November 2001 revealed an ejection fraction of 48% with moderate aortic stenosis and mild aortic insufficiency. The Veteran also had left atrial enlargement and mild left ventricular hypertrophy. The examiner commented that even without seeing the Veteran's records, he suspected that the current aortic stenosis and aortic insufficiency were related to the heart murmur he was born with and diagnosed with before entering the military and at his exit examination. The examiner noted that if the Veteran did indeed have a bicuspid aortic valve, then the aortic disease he currently had would be consistent with the natural history of this congenital abnormality. An October 2003 private cardiac catheterization produced a diagnostic impression of symptomatic severe calcific aortic stenosis without significant coronary artery disease. The Veteran was recommended for aortic valve replacement. A November 2003 operative report shows that the Veteran underwent aortic valve replacement surgery with 3F therapeutics 25 mm valve. A November 2003 VA specimen report reflects analysis of the removed aortic valve. The report indicates that the valve consisted of three leaflets, one which was slightly thickened but otherwise unremarkable and two leaflets that were fused and calcified. A January 2004 private echocardiography report reflects that the implantation of the bioprosthetic valve had apparently eliminated previous aortic stenosis. Diastolic dysfunction was also no longer present. The degree and eccentricity of aortic insufficiency was noted to be striking. A July 2004 VA operative note shows that the Veteran was experiencing a significant prosthetic aortic perivalvular leak. As a result he underwent redo valve replacement surgery with a St. Jude 25 mm valve. An October 2004 VA echocardiogram produced findings of concentric left ventricular hypertrophy, septal hypokinesis, paradoxical septal motion, normally functioning mechanical aortic valve, trace aortic regurgitation, thickened mitral valve, trace mitral regurgitation, pacemaker lead in the right ventricle, mild tricuspid regurgitation and trace pulmonic regurgitation. A February 2008 VA echocardiogram produced findings of moderate concentric left ventricular hypertrophy, normal left ventricular systolic function, possible impaired left ventricle contraction, pacemaker lead in the right ventricle, normally functioning mechanical aortic valve prosthesis and trace mitral regurgitation. In a March 2009 letter, a treating cardiologist, Dr. E, indicated that it appeared likely that the Veteran had had a congenitally bicuspid heart valve and a history of murmur prior to entering the military although this was not noted on his induction physical. It did appear that during his service his condition worsened and required further assessment and his abnormal valve subsequently deteriorated and subsequently had required two surgeries for valve replacement. Although the cardiologist could not say that the Veteran's service definitely accelerated the deterioration of the valve, it was evident that the valve condition worsened during his service. On June 2009 VA examination the examiner noted that he had reviewed the Veteran's claims file. He also noted that the Veteran had had a cardiac murmur for many years but apparently did not have any functional cardiac disability until 2000, when he developed an inadequate cardiac rhythm that required the insertion of an electronic cardiac pacemaker. The examiner noted that an extremely important November 2003 VA operative report pertaining to the veteran's first operation on his diseased aortic valve indicates that inspection of the valve was notable for tri-leaflet valve with significant calcific valvular disease primarily localized to the left aortic leaflet and non-coronary sinus leaflet. The diseased aortic valve was excised and replaced by an equine pericardial tissue heart valve. The examiner noted that direct inspection of the original diseased valve prior to its removal was the most reliable method to determine whether a calcified aortic valve was initially a congenitally abnormal bicuspid valve or was a normal or possibly abnormal tri-leaflet valve when the Veteran was born. The examiner felt that the functional cardiac disease and disability that the Veteran started having in the year 2000 were rather common problems that develop in many people with advancing age. The examiner did not see any reason to indicate that these conditions were caused or made worse by the Veteran's military service. During the September 2010 Board hearing, the Veteran testified that he started having trouble with his heart in 1974 and he was subsequently found to have aortic insufficiency. As a result he was given light duty and served mostly as a driver. He indicated that he was currently 100% disabled due to his aortic insufficiency. He also noted that he provided the March 2009 VA cardiologist parts of his VA and military records for review prior to the cardiologist commenting on the progression of his aortic valve disease. Additionally, he contended that he believed his aortic valve disease occurred while he was in the military. In a June 2011 opinion, a VA cardiologist and internist noted that the Veteran entered the service in 1971 and that the Veteran's pre-induction examination described the Veteran's cardiovascular examination as normal and did not include any auscultation findings. The cardiologist noted that there were several possible explanations for this, including that there is a wide range in auscultation skills among physicians and the examining physician may not have heard the Veteran's murmur; the Veteran did not have a detectable murmur; or the murmur was present but the physician interpreted the finding as a flow murmur, a functional murmur that is not uncommon in younger people and is not related to any structural disease. The cardiologist noted that the Veteran re-enlisted in January 1974 and was diagnosed with a heart murmur. He also noted that the Veteran was subsequently diagnosed with mild aortic insufficiency and aortic stenosis. The Veteran had stated that he had a heart murmur since birth and in the absence of convincing evidence that the Veteran had had rheumatic heart disease or endocarditis, the cardiologist found that this was the most likely explanation for his mild aortic insufficiency/aortic sclerosis at age 23. Regarding the Veteran's heart valve morphology and progression, the cardiologist found that the record tended to indicate that the Veteran actually did have a bicuspid heart valve with the unusual feature, fusion of the left and non-coronary cusps. Otherwise, the Veteran's case was in several other aspects typical for bicuspid aortic valve disease. The bicuspid valves tended to severely calcify at an earlier age than expected in calcific aortic disease, the severity of aortic stenosis and/or insufficiency in bicuspid aortic valves progresses with age, with the majority of patients requiring surgical intervention in the 6th decade of life and bicuspid valves were more common in males. It was the cardiologist's opinion that the Veteran had a congenital bicuspid aortic valve. This was based on the age when the diagnosis of aortic insufficiency was made, the early suspicion of a distorted cusp morphology (echocardiogram in 1978), the lack of a plausible alternative diagnosis, the pathology report consistent with fused cusps and the age at which the patient had developed severe valve disease and required surgery. Thus, the murmur that was found upon entrance to the Veteran's second period of service was caused by a congenital defect. The cardiologist also specifically found that the Veteran's valvular disease pre-existed his entrance into military service. He noted that the first signs of the disease were certainly present in 1974 and probably earlier. He also noted that the symptoms the Veteran complained about when he was still in service were unlikely to have been caused by the valvular heart disease that was reportedly mild at that time. Finally, the cardiologist found that it was not at least as likely as not that the Veteran's valvular heart disease permanently increased in severity beyond the natural progression of the disease. The cardiologist noted that several studies had investigated the prevalence of bicuspid valves in athletes, the effect of exercise on valve morphology and hemodynamics in athletes with bicuspid aortic disease. These studies had concluded that athletic activity does not have an additional effect on cardiac morphology in athletes with a symptomatic bicuspid aortic valve, associated with mild regurgitation, for at least 5 years. While one study did not constitute a strong body of evidence, overall, there was no data to support the strenuous physical activity increased valvular heart disease progression. In response to the Joint Motion, the Board requested an IME opinion in January 2013. Dr. J.S. opined that the congenital bicuspid aortic valve condition was best described as a "disease" because it could clearly worsen over time. Likewise, the physician opined that aortic stenosis and insufficiency are best described as "diseases" related to the bicuspid aortic valve. In addition, he opined that the first documentation of aortic valve disease was the cardiac murmur at the Veteran's reenlistment examination in 1974. He noted, however, that even in the setting of congenital aortic bicuspid aortic valve, it is common to have a normal cardiac examination well into the second decade of life. In response to the Board's question as to whether the aortic valve disease increased in severity during the Veteran's service, the physician opined that it was impossible to answer at that stage of the disease because the technology did not evolve until the late 1980s. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110; 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). There must be competent evidence showing the following: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of service connection pursuant to § 1110, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Where a disability is noted upon entry into service or otherwise found to have preexisted service, the appellant cannot bring a claim for service connection for that disorder, but may bring a claim for service-connected aggravation of that disorder. In such cases, the burden falls on the appellant to establish aggravation under 38 U.S.C.A. § 1153. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If evidence is presented which establishes that the preservice disability underwent an increase in severity during service, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306(b). Congenital and developmental defects are not disabilities within the meaning of applicable regulations providing for payment of VA disability compensation benefits. 38 C.F.R. §§ 3.303, 4.9 (2012). Therefore, such disorders require more than an increase in severity during service in order to warrant a grant of service connection. The evidence must show that the congenital or developmental defect was subject to a superimposed disease or injury during military service that resulted in increased disability. VAOPGCPREC 82- 90 (July 18, 1990), 55 Fed. Reg. 45711 [a reissue of General Counsel Opinion 01-85 (March 5, 1985)]. VA General Counsel explained that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. A congenital disease may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. On the other hand, a congenital or developmental defect is not service connectable in its own right, although service connection may be granted for additional disability due to disease or injury superimposed upon the defect during service. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90. Except where otherwise noted, the standard of proof to be applied in decisions on claims for Veterans' benefits is set forth in 38 U.S.C.A. § 5107. A Veteran 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 Veteran seeks benefits and the evidence is in relative equipoise, the Veteran 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). Analysis In this case, the preponderance of the evidence reflects that the Veteran's aortic heart disease was first noted at his reenlistment examination in 1974. The weight of the medical evidence indicates that the murmur found during that examination was caused by a congenital bicuspid valve condition. As an initial matter, the Board must determine whether the congenital bicuspid valve condition and resulting aortic stenosis and insufficiency are best described as congenital "defects" or "diseases." As noted in the Joint Motion, the terms "defect" and "disease" have been used interchangeably to describe the Veteran's heart condition. Therefore, the Board sought an outside medical opinion in January 2013. The physician opined that the congenital bicuspid aortic valve condition and aortic stenosis and insufficiency were best described as "diseases" by the definition provided by the Board. See VAOPGCPREC 82-90 (July 18, 1990). The physician explained that these conditions can clearly worsen over time, which is more consistent with the definition of a "disease." As noted above, congenital disease may be recognized as service-connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. The next question is whether the presumptions of soundness and/or aggravation apply. Specifically, the parties pointed out in the Joint Motion that the Board had not addressed whether the presumption of soundness applies to the Veteran's first period of service. The Court has held that the presumption of soundness applies only when there is manifestation of a disease or injury during service. See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). In this case, the Veteran's June 1971 entrance examination indicated that his heart was clinically normal and there were no manifestations of heart disease during this period of service. The June 2011 VA cardiologist provided an explanation for the normal findings, noting that there are a wide range of auscultation skills among physicians, that the Veteran may not have had a detectable murmur, or that it may have been interpreted as a functional murmur that was not related to any structural disease. In any event, because there was no manifestation of heart disease during the Veteran's first period of service, the presumption of soundness does not apply. With regard to the second period of service, the Veteran's aortic heart disease, specifically a heart murmur, was noted at his January 1974 reenlistment examination. Therefore, the presumption of soundness does not apply to the second period of service. To determine whether the presumption of aggravation applies for this preexisting disease, the Board must first determine whether there was an increase in the disability during service. In this regard, it is the Veteran who has the burden of proof. The Board finds that the evidence for and against finding that an increase in disability occurred during the second period of service is in relative equipoise. The evidence supporting an increase in disability includes the Veteran's service treatment records, which show a diagnosis of aortic insufficiency with symptoms such as chest pains, dizziness, and shortness of breath. The Veteran was given a profile requiring that he not engage in any strenuous physical activity for more than 20 minutes. After complaining of dizziness and dyspnea with running, he was given a permanent profile to run at his own pace. The Veteran's treating cardiologist, Dr. E., also indicated that it was evident that the valve condition worsened during his service, although he could not say whether service itself accelerated the deterioration of the heart valve. The evidence against finding an increase in disability occurred includes the fact that the Veteran was noted to be in good health at his August 1981 separation examination except for a grade II/VI systolic murmur. Furthermore, there was little or no functional impairment evident until 2000. For example, in January 1990, it was noted that he had a heart murmur since service, but had no cardiovascular symptoms. His exercise capacity was good and he was working full time. The June 2009 VA examiner opined that the Veteran's cardiac disease was related to age and was not caused or made worse by the Veteran's military service; however, he did not specifically address the symptoms and findings in service. The June 2011 VA cardiologist explained that the calcification of a bicuspid valve progresses with age leading to aortic stenosis and/or insufficiency. Although the cardiologist opined that the valvular heart disease did not permanently increase beyond the natural progression of the disease during service, the Board points out this opinion does not address the correct standard of proof required to determine whether the presumption of aggravation applies (i.e., whether an increase in disability is shown) and if so, whether it is rebutted by clear and unmistakable evidence that the increase was due to the natural progression of the disease. The outside medical opinion provided in January 2013 indicated that it was impossible to determine whether the Veteran experienced worsening of his aortic disease during service because the requisite technology was not developed until the late 1980s. Under these circumstances, the Board finds that the evidence for and against finding that there was an increase in the Veteran's aortic heart disease during his second period of service is in relative equipoise. Therefore, the benefit of the doubt must be resolved in the Veteran's favor on this particular point and the presumption of aggravation applies. In other words, the Veteran's aortic heart disease is presumed to have been aggravated during the second period of service unless there is clear and unmistakable evidence that the increase was due to the natural progression of the disease. VA has the burden to rebut the presumption of aggravation. In this case, the Board finds that there is insufficient evidence to rebut the presumption of aggravation. As noted above, although the June 2011 VA cardiologist opined that it was "not at least as likely as not that" the aortic heart disease increased in severity beyond the natural progression of the disease, this does not rise to the level of "clear and unmistakable evidence" that the increase was due to the natural progression. Dr. E. was equivocal in his opinion as to whether service accelerated the deterioration of his valve and the January 2013 outside medical opinion did not reach this inquiry because the physician indicated it was impossible to determine whether there was an increase in the disability. In sum, while there is some evidence to suggest that the increase was due to the natural progression of the disease, clear and unmistakable evidence is not demonstrated. Therefore, the presumption of aggravation is not rebutted and entitlement to service connection on the basis of aggravation is warranted. ORDER Entitlement to service connection for aortic heart disease on the basis of aggravation is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs