Citation Nr: 1325072 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 05-03 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a heart disorder, to include cardiac dysrhythmia and ischemic heart disease. REPRESENTATION Appellant represented by: David L. Huffman, Attorney WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from October 1974 to April 1975 and from October 1990 to May 1991. She also had periods of active duty training and inactive duty training with the National Guard/Reserve. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In November 2008, the Veteran testified at a hearing before a Decision Review Officer at the RO. In October 2009, she testified at a Travel Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are of record. In January 2010, the Board remanded the matter for additional development. In a June 2012 written statement, the Veteran, through her authorized representative, indicated that she wished to withdraw all claims that remained on appeal except for entitlement to service connection for a heart disorder. In February 2013, the Board requested a Veteran's Health Administration (VHA) opinion, which was received in April 2013. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Virtual VA file has been reviewed in conjunction with the disposition of the issue on appeal. FINDINGS OF FACT 1. The Veteran's heart disorder did not manifest during the Veteran's first period of active duty, was not compensably disabling within one year of separation from her first period of active duty, and is unrelated to her first period of active duty. 2. The Veteran's heart disorder clearly and unmistakably pre-existed her second period of active duty. 3. The Veteran's pre-existing heart disorder clearly and unmistakably underwent no clinically identifiable permanent increase in severity, including beyond its natural progression, during her second period of active duty. CONCLUSION OF LAW A heart disorder, to include cardiac dysrhythmia and ischemic heart disease, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in July 2002 and June 2006 of the information and evidence needed to substantiate and complete the claim, to include notice of what part of that evidence is to be provided by the claimant, and what part VA will attempt to obtain. VA notified her of how disability ratings and effective dates are determined in June 2006. The claim was most recently readjudicated in a November 2012 supplemental statement of the case. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording VA examinations and obtaining medical opinions. In this case, the Veteran was afforded a VA examination in June 2012 and a supplemental opinion was provided in July 2012. A private medical opinion was also provided by Dr. KAN in January 2009. As will be discussed below, the opinions provided by the VA examiner and Dr. KAN were inadequate to make a determination on the claim. Therefore, the Board requested a VHA opinion in February 2013. In April 2013, a VA physician reviewed the claims file, noted the pertinent medical history, and provided the requested medical opinion with supporting rationale. The Veteran does not argue that any specific finding is missing and no deficiencies are apparent. Hence, the Board finds that all questions necessary to render the determination made herein have been answered. The medical examination, along with the VHA opinion, is therefore adequate. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (defining adequacy with respect to medical examinations and opinions as those providing sufficient detail so that the Board can perform a fully informed evaluation). As noted above, the Board remanded the claim in January 2010. As the agency of original jurisdiction (AOJ) took efforts to obtain any outstanding treatment records and scheduled the Veteran for a VA examination, the Board finds that the AOJ substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). The Veteran provided testimony at an RO hearing before a Decision Review Officer in November 2008 and at an October 2009 Board hearing before the undersigned. In the hearings, the Veteran was assisted by his representative and the issues were clearly identified and explained. The representative, the Decision Review Officer, and the Veterans Law Judge asked questions to develop the issue pertinent to her claim of entitlement to service connection for a heart disorder. The Veteran was asked questions to determine whether there were any additional medical records or other evidence relevant to her claim that might be outstanding. Therefore, the Board finds that the Veterans Law Judge and Decision Review Officer complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Bryant v. Shinseki, 23 Vet. App. 488 (2010). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). For veterans who served for 90 days or more during a war period or after December 31, 1946, service connection may be presumed for certain chronic diseases, including cardiovascular-renal disease, if manifest to a compensable degree within one year after discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Where there is a chronic disease shown in service, 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). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). Service connection may 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). Every person employed in the active military, naval, or air service 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. In July 2003, the VA General Counsel issued a precedent opinion holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Unless otherwise noted, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis In this case, the Veteran alleges that her current heart disorder was incurred in or aggravated by her second period of active duty. As noted above, the Veteran served on active duty from October 1974 to April 1975. The service treatment records are unremarkable for any complaint, treatment, or diagnosis related to a heart condition. The June 1974 enlistment examination report reflects that her heart was clinically normal; a chest X-ray was negative. It is not alleged and the evidence does not show that the Veteran's heart disorder manifested during her first period of active duty, to a compensable degree within one year of separation from her first period of active duty, or is otherwise related to her first period of active duty. The Veteran's Air National Guard records reflect that on a January 1980 Report of Medical History, the Veteran denied palpation or pounding heart and heart trouble. During a periodic March 1983 examination, her heart was clinically normal and the electrocardiogram (ECG) was within normal limits. ECGs dated in May 1984 and September 1985 were also normal. The Veteran denied palpation or pounding heart and heart trouble in September 1985. An October 1989 periodic examination reflects that the Veteran's ECG was normal. The ECG itself notes "sinus rhythm with sinus arrhythmia," "nonspecific T wave abnormality," "short QT interval," and "abnormal ECG." The Veteran denied having palpation or pounding heart and heart trouble. A May 1990 private treatment record notes that the Veteran had an episode of tachycardia while on vacation a few weeks prior. She was treated with Verapamil and Tenormin. A June 1990 private treatment record from Dr. DLN indicates the Veteran was referred for evaluation of supraventricular tachycardia. At that time she reported having had tachycardias over the past six years, which she controlled by avoiding caffeine and eating an appropriate diet. A few weeks prior, she had a severe episode of tachycardia and was treated in the emergency room. An echocardiogram revealed Barlow's syndrome with mild holosystolic prolapse of the anterior mitral leaflet. It was noted that she should stay on Tenormin and subacute bacterial endocarditis (SBE) prophylaxis. The Veteran served on active duty from October 1990 to May 1991. Service treatment records indicate that she had an episode of paroxysmal atrial tachycardia which responded to oral Verapamil therapy in December 1990. She was discharged after 48 hours of cardiac monitoring and a subsequent ECG showed normal sinus rhythm. It was noted her symptoms were well-controlled with 40 milligrams (mg) of Verapamil. During civilian life, a July 1995 emergency room record from Montgomery General Hospital indicates that the Veteran was treated for an episode of supraventricular tachycardia and paroxysmal after taking two diet pills. She reported that she had continued taking Verapamil after returning from Desert Storm until 1993. She said she stopped taking the medication in 1993 because she felt she was doing alright without it. In August 1995, an echocardiogram from Charleston Cardiology Group revealed mild holosystolic prolapse of the anterior mitral leaflet with associated, very mild mitral regurgitation and well preserved biventricular function. The Veteran was given amoxicillin for dental work, and Rythmol to take during episodes of tachycardia. Air National Guard records indicate that the Veteran reported episodes of tachycardia in June 2003. In April 2004, it was noted that she was taking Toprol and was asymptomatic, but that she was not recommended for deployment because of the possibility that her symptoms could reoccur. She was discharged from the Air National Guard in July 2004. In a January 2009 statement, Dr. KAN, a private physician, noted that the Veteran had episodes of paroxysmal supraventricular tachycardia (PSVT) that were well-controlled until she was deployed to the Middle East in 1990. The physician opined that "the stresses involved in her military service aggravated these episodes of PSVT." The physician further stated that since the Veteran's return, she initially had frequent episodes of PSVT that were now controlled with medications. A VA examination was conducted by a nurse practitioner in June 2012. A diagnosis of supraventricular arrhythmia was noted. The examiner opined that the Veteran's condition clearly and unmistakably existed prior to service, but was aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner did not provide a rationale for her opinion except to note that cardiac dysrhythmia was documented in June 1990. In response to a request for clarification, she changed her opinion, stating that there was not enough rationale for a determination that the Veteran's condition was aggravated beyond its natural progression. She ultimately opined that the Veteran's condition clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In February 2013, the Board requested a VHA opinion for clarification purposes, which was provided in April 2013. The physician, Dr. EQR, opined that the Veteran's supraventricular paroxysmal tachycardia and prolapse of anterior mitral leaflet clearly and unmistakably were already present at the time of her entrance into active duty in October 1990. She noted that the records prior to October 1990 showed that the Veteran had had several episodes of supraventricular tachycardia and needed medications to control it. She also noted that evidence of mitral valve pathology was found in ECGs performed before active service. Dr. EQR also opined that the record clearly and unmistakably showed that the pre-existing heart conditions were not aggravated by service and that post-military appearance of mild mitral valve regurgitation was not considered aggravation, but natural progress of the disease. In this regard, she noted that that the Veteran had an episode of paroxysmal atrial tachycardia in December 1990 while on active duty, which responded to oral Verapamil therapy. The physician opined that this episode did not constitute permanent aggravation of the condition, but a normal manifestation of the disease and that the Veteran had had similar episodes of tachycardia prior to active duty that had also responded to Verapamil. The physician also noted that no other major problems were reported during active duty and the Veteran was able to continue performing the military tasks assigned until she was discharged. After discharge, the physician noted that the Veteran's heart condition continued to be controlled with medication until she discontinued them in 1993, which suggested the absence of symptoms or controlled condition from at least December 1990 to July 1995. Five years post-military service of stable condition constitutes evidence against aggravation. The physician reiterated that the evidence discussed above clearly and unmistakably showed that the pre-existing heart disorder was not aggravated by service and that any increase in disability was due to the natural progression of the disease. With regard to Dr. KAN's statement, the physician noted that his opinion was not supported by the evidence as discussed above. The physician also provided several references to support her opinion. In various lay statements, the Veteran's family members, friends, and fellow service members reported that the Veteran had difficulties with her heart while deployed to the desert, was hospitalized and in the ICU for 24 hours, and continued to have spells with her heart. Her friends and family members stated that she was much worse after returning from service and had to frequently go to the emergency room for her heart and stomach. In this case, the evidence of record clearly and unmistakably demonstrates that the Veteran's heart disorder manifested between her first and second period of active duty- sometime between the mid-1980s and May 1990. This is supported by the contemporaneous medical evidence and the lay statements of record. For example, Dr. KAN noted that the Veteran was diagnosed with paroxysmal supraventricular tachycardia in May 1990. In June 1990, the Veteran reported having a six year history of tachycardia and she was diagnosed with Barlow's syndrome and mild holosystolic prolapse of the anterior mitral leaflet. In July 1995, she reported that she began having episodes in 1988. During the October 2009 Board hearing, she testified that she began having heart problems in the late 1980s (Hearing Transcript (Tr.), pg. 22). The June 2012 VA examiner opined that the Veteran heart disability clearly and unmistakably pre-existed her second period of active duty and the April 2013 VHA opinion also directly addressed this issue. Dr. EQR unequivocally opined that the Veteran's heart disability clearly and unmistakably pre-existed her second period of active duty and that the evidence was "obvious and manifest." For these reasons, the Board finds that the Veteran's heart disorder clearly and unmistakably pre-existed her second period of active duty. The next question the Board must address is whether the Veteran's pre-existing heart disorder was aggravated by her second period of active duty. Because there is no entrance examination of record, the Veteran is presumed to have been in sound condition at the time she entered active service in October 1990. To rebut the presumption of soundness, VA has the burden of demonstrating that there is clear and unmistakable evidence that the disability both pre-existed service and clear and unmistakable evidence that it was not aggravated during service. Having determined that the Veteran's heart disorder clearly and unmistakably pre-existed her second period of active duty, the Board must now determine whether there is clear and unmistakable evidence that her pre-existing heart disorder was not aggravated by service. The Board acknowledges that competing competent evidence has been presented addressing this question. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. See also Obert v. Brown, 5 Vet. App. 30 (1993); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board finds the April 2013 VHA opinion that the Veteran's pre-existing heart disorder clearly and unmistakably was not aggravated by service highly probative medical evidence. The VA physician rendered this opinion after thoroughly reviewing the claims file and medical records, to include the Veteran's assertions of aggravation and the statement provided by Dr. KAN. Furthermore, the VA physician provided detailed rationale for her opinion which included citation to the relevant medical history and pertinent medical literature. The contemporaneous medical evidence also supports the opinion. For these reasons, the Board finds the opinion highly probative. By contrast, Dr. KAN did not did not indicate that he had the opportunity to review the Veteran's claims file. Moreover, he did not provide a detailed rationale for his opinion that the Veteran's heart disability was aggravated by stress in the military. Although he indicated that she had frequent episodes of PSVT after her return from service, this is not supported by the underlying record. Rather, the first documented episode of tachycardia post-service was in July 1995. At that time, the Veteran reported that she had stopped taking her medication in 1993 because she felt she was doing alright without it. Because the contemporaneous medical and lay evidence does not support Dr. KAN's conclusion, the Board finds that it has little probative value. Likewise, the Board finds little probative value in the June 2012 VA examiner's opinions regarding aggravation. As noted above, she initially opined that the Veteran's pre-existing heart disorder was aggravated beyond its natural progression during service, but provided no rationale except to note the episode of cardiac dysrhythmia that occurred prior to service in June 1990. When asked for clarification, she changed her opinion, concluding that there was clear and unmistakable evidence that the pre-existing heart disorder was not aggravated beyond its natural progress in service. The rationale provided is somewhat probative. The examiner noted that the Veteran had responded to treatment at the time of her December 1990 episode and was able to complete her tour of duty without other episodes of tachycardia. This tends to support the April 2013 VHA opinion and is consistent with the record. However, the examiner then went on to opine that it was "less likely" that the pre-existing heart disorder was aggravated by active service. This is not the correct standard of proof and clouds her earlier opinion that the pre-existing disability clearly and unmistakably was not aggravated. The only other opinions addressing this question are that of the Veteran and other individuals. To the extent they assert that her heart disability worsened or was aggravated by her second period of active duty, they are competent to report what they observed. For example, the Veteran is certain competent to report that she had episodes of rapid heart rate, i.e., tachycardia, and her friends and family are competent to report that she went to the hospital and continued to have problems. Furthermore, the Board has no reason to doubt their credibility. The Board finds, however, that the contemporaneous medical evidence and the April 2013 VHA opinion are much more probative on this point and that this evidence clearly and unmistakably demonstrates that the Veteran's pre-existing heart disorder was not aggravated by her second period of active duty. In sum, the Board finds that the Veteran's heart disorder did not manifest in or to a compensable degree within one year of separation from her first period of active duty; that her heart disorder is unrelated to her first period of active duty; that the evidence clearly and unmistakably demonstrates that the her heart disorder pre-existed her second period of active duty; and that the evidence clearly and unmistakably demonstrates that her pre-existing heart disorder was not aggravated by her second period of active duty. For these reasons, entitlement to service connection for a heart disorder is not warranted. ORDER Entitlement to service connection for a heart disorder, to include cardiac dysrhythmia and ischemic heart disease, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs