Citation Nr: 1323049 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 07-28 069A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for cardiac arrhythmia to include as secondary to a service-connected disability. 2. Entitlement to service connection for sinus tachycardia, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION The Veteran had active military service from October 1952 to September 1954. These matters come before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. This appeal was previously before the Board in August 2010, May 2011, and January 2013, and was remanded for further development. It has now returned to the Board for further appellate consideration. As discussed in further detail below, the Board finds that the RO substantially complied with the mandates of its remand. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In Clemons v. Shinseki, 23 Vet. App (2009), the Court held that an appellant's diagnoses which arise from the same symptoms for which he is seeking benefits, do not relate to entirely separate claims not yet filed by the appellant. Rather, these diagnoses should be considered to determine the nature of the appellant's current condition relative to the claim he did submit. In the present claim, the Veteran has averred that he has a heart disability. Based on the clinical findings discussed in further detail below, the Board has separated the original issue into two separate issues, as styled above. 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). FINDINGS OF FACT 1. The Veteran is service connected for anxiety reaction with conversion symptoms. 2. The Veteran has anxiety related rapid heartbeat which is more likely than not sinus tachycardia, a normal response to anxiety. 3. The Veteran's nocturnal heart palpitations are not a disability for VA purposes. 4. The most probative evidence of record is against a finding that the Veteran has cardiac arrhythmia. CONCLUSIONS OF LAW 1. Cardiac arrhythmia was not incurred in, or aggravated by, active service, and may not be presumed to have been so incurred or aggravated, nor is it proximately due to, the result of, or aggravated by, service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2012). 2. Sinus tachycardia is proximately due to the Veteran's service-connected anxiety with conversion disorder. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310. (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice was provided to the Veteran in June 2006. VA also has a duty to assist the Veteran in the development of the claims. The claims file contains the Veteran's STRs, VA and private medical records, and the statements of the Veteran in support of his claims. The Board has considered the statements and perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims for which VA has a duty to obtain. In May 2011 correspondence, VA requested the Veteran to provide medical evidence of cardiac arrhythmia, to include treatment by Dr. M.H. Correspondence from Dr. M. H. received by VA in July 2011 reflects the statement of Dr. M.H. that the Veteran is under care for cardiac arrhythmia and anxiety; however, no test results were received. In its January 2013 remand, the Board directed that VA attempt to obtain private records, to include Holter test results, from Dr. M.H. In April 2013, VA complied with the Board's directive and requested that the Veteran provide it with authorization for it to obtain records; the Veteran has failed to provide such authorization or the records. The duty to assist is not a one-way street. If a Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). VA examination reports are of record. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the Veteran has been afforded an adequate examination/opinion. The April 2013 VA examination report reflects clinical examination findings, an interview with the Veteran with regard to his symptoms and treatment, a review of pertinent clinical records, and rationale for the opinion proffered. In its 2013 remand, the Board directed that the Veteran should be afforded a VA examination to include Holter monitor testing. The record does not reflect that Holter monitor testing was performed at the 2013 VA examination. Nevertheless, the Board finds that there has been substantial compliance with its remand. The Board finds that the VA examiner, who is a physician, is well qualified in determining whether a Holter monitor test is warranted. Further, the Board's request regarding a Holter monitor test was suggestive, not mandatory. Importantly, the Veteran is competent to state what he has been told with regard to his test results, and he has stated that the results of a previous Holter monitor test were negative for a disability. In addition, the Veteran has failed provide any evidence otherwise. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the claims. Essentially, all available evidence that could substantiate the claims has been obtained. Legal criteria Service Connection in general Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some "chronic diseases," presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With "chronic disease" shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307. The term "chronic disease", whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis and organic diseases of the nervous system are included in 38 C.F.R. § 3.309(a). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Service connection on a secondary basis Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006), to implement the decision in Allen. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the U.S. Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that he has irregular heart palpitations. The Board has considered whether the Veteran's has irregular heart palpitations due to his service-connected psychiatric disability (anxiety with conversion), or if he has cardiac arrhythmia as a separate disability. As discussed in further detail below, the Board finds that the Veteran does not have cardiac arrhythmia; rather, he has sinus tachycardia as a symptom of service-connected anxiety with conversion disability. The Board has considered the entire claims file, to include the Veteran's symptoms noted in his STRs. A January 1954 STR reflects that the Veteran had a history of typical symptoms of nervousness, to include palpitations. The Veteran was diagnosed with neurocirculatory asthenia (psychogenic cardiovascular reaction). Post-service, in June 1961, the Veteran was diagnosed with anxiety reaction with conversion symptoms. The June 1961 examiner noted that neurocirculatory asthenia (psychogenic cardiovascular reaction ) and anxiety reaction with conversion symptoms are both considered subgroups under the general heading of psychoneurotic disorders and are considered similar and related clinical entities. Based on the foregoing, in a July 1961 rating decision, the RO granted the Veteran entitlement to service connection for anxiety reaction with conversion symptoms. A January 2002 private medical record reflects that the Veteran had some "fluttering in chest" when lying down and had been treated by Dr. M.H. A subsequent note the next day reflects that the Veteran had been given medication which helped eliminate the fluttering. March 2005 correspondence from Dr. M.H. states that the Veteran has a history of palpitations and anxiety. He noted that "[p]resently, [the Veteran] has the condition of anxiety." In correspondence, received by VA in April 2006, Dr. M.H. states that the Veteran has cardiac arrhythmia. Dr. M.H. stated that the Veteran's cardiac arrhythmia has been aggravated by his underlying anxiety. Arrhythmia is defined as any variation from the normal rhythm of the heartbeat. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007). The probative value of medical opinions is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guarneri v. Brown, 4 Vet. App. 467, 470-71 (1993). There is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). The Board finds that the opinion of Dr. M.H. has little, if any probative value. Dr. M.H. does not provide an adequate basis for his finding that the Veteran has cardiac arrhythmia. The Veteran has reported that he had a Holter monitor test performed several years ago by his private examiner. A Holter monitor is a portable device for continuously monitoring the heart's activity. Despite VA requests, no Holter monitor testing results have been provided to VA by the Veteran or his private provider. Nevertheless, the Veteran has stated that the results were negative for a disability. The Veteran is competent to state what he was told by his provider. Jandreau v. Nicholson, 492 F. 3d 1372 (C.A. Fed. 2007). There is no indication that his statement is other than credible and it is accepted as such. A September 2010 VA examination report reflects the opinion of the VA examiner as follows: "After carefully reviewing the claims file and the current clinical findings, it is my opinion that there is no evidence of cardiac arrhythmia, and his palpitations are really heartbeats that the patient feels at night and not an irregular heart." A June 2011 VA examination report reflects the statement of the VA examiner, in pertinent part, as follows: "The Holter monitor was done several years ago by his private doctor, and there was no arrhythmia noted in the Holter monitor. When he is very anxious, he gets palpitations. He gets palpitations particularly at night when he has nightmares; his heart starts beating fast. During the day just before he takes his Xanax, he gets anxious and he will get palpitations. As soon as he takes his Xanax and mirtazapine, he calms down, it relaxes him, and the palpitations ease." A July 2013 VA examination report reflects that the Veteran reported that "dating back to his service in Korea when he has anxiety he notices a rapid regular heartbeat. For the past 20-30 years, he has bursts or irregular palpitation, especially at night which occur [three times] weekly and last for 30 [seconds] at a time. These attacks typically occur at rest when he is not having anxiety attacks. Once the palpitations occur he becomes anxious because of the palpitation." The 2013 VA examiner opined as follows: The anxiety related rapid heartbeat he reports is more likely than not sinus tachycardia. A physiologic and normal response to anxiety. The nocturnal palpitations are very compatible with PVCS [premature ventricular contractions], which are generally a clinically unimportant arrhythmia common in everybody. These according to the [Veteran] are not caused by anxiety, but are random events that occur typically when he is calm. This type of nonexertional rhythm disturbance is less likely than not of ischemic origin. Hypertension as long as it [is] well controlled as in this patient, is less likely than not to cause a significant arrhythmia. Anxiety has the potential to temporarily aggravate any arrhythmia but this does not appear to be the case in this patient. It is less likely than not that he has arrhythmia caused by anxiety/conversion reaction. Thus, it appears that the Veteran has two types of somewhat irregular palpitations. The first type is sinus tachycardia, a normal response to his anxiety. (Sinus tachycardia is defined as excessive rapidity in the action of the heart and is normal during exercise and anxiety. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31st Ed. 2007)). The second type is the nocturnal palpitations which are not a disability as they have been found to be clinically unimportant and common in everybody. In sum, the Veteran does not have an arrhythmia disability. The Veteran is competent to report that what he feels with regard to his heartbeats; however, he has not been shown to have the education, training, and experience necessary to provide a competent opinion as to whether any such heartbeat rhythm or rate is normal, or if abnormal, the reasons for such. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issue in this case in light of the education and training necessary to make a finding with regard to cardiovascular matters. The Board finds that such an etiology finding falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the 2013 VA opinion is the most probative opinion of record. With regard to the claim of entitlement to service connection for cardiac arrhythmia, the Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C.A. § 5107 (West 2002), and 38 C.F.R. § 3.102 (2010), but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for cardiac arrhythmia, to include as secondary to a service-connected disability, is denied. Entitlement to service connection for sinus tachycardia is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs