Citation Nr: 1328534 Decision Date: 09/06/13 Archive Date: 09/16/13 DOCKET NO. 08-12 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for cardiovascular disability, manifested by ventricular ectopy and arrhythmias, claimed as secondary to service-connected posttraumatic stress disorder (PTSD) or type II diabetes mellitus (DM). REPRESENTATION Appellant represented by: Robert W. Gillikin, II, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. 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 Roanoke, Virginia. In September 2008, the Veteran testified during a hearing before a Decision Review Officer at the RO. In June 2010, the Veteran and his spouse testified by videoconference before the undersigned Veterans Law Judge. A copy of each transcript is of record. The Board remanded the claim in September 2010 and denied it in October 2011. In April 2012, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand, vacating the October 2011 Board decision as to this claim and remanding the claim to the Board for further development consistent with the instructions in the Joint Motion. Pursuant to these instructions, the Board remanded the claim to the RO in September 2012. For the reasons stated below, the RO complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also denied entitlement to service connection for hypertension and bilateral hearing loss disability in its October 2011 decision, and the parties to the Joint Motion indicated that the Veteran had abandoned his appeal of these denials. Those claims are therefore no longer before the Board. See Ford v. Gober, 10 Vet. App. 531, 535 (1997). FINDINGS OF FACT 1. Cardiovascular disability, manifested by ventricular ectopy and arrhythmia, is not caused or permanently made worse by service-connected posttraumatic stress disorder (PTSD) or diabetes mellitus (DM), or the medication taken therefore. 2. Cardiovascular disability, manifested by ventricular ectopy and arrhythmia, did not manifest in service, within the one year presumptive period or for many years thereafter, and is unrelated to service. 3. The Veteran does not have a disease for which service connection is presumed in veterans exposed to Agent Orange. CONCLUSIONS OF LAW 1. Cardiovascular disability, manifested by ventricular ectopy and arrhythmia, is not proximately due to, the result of, or aggravated by, service-connected disease or injury. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). 2. Cardiovascular disability, manifested by ventricular ectopy and arrhythmia, was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Under the VCAA, 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) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In July 2006, November 2010, and October 2012 letters, the RO notified the Veteran of the evidence needed to substantiate the claim for entitlement to service connection for a heart disability/ventricular ectopy, to include as secondary to PTSD or DM. These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 was amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the July 2006 letter complied with this requirement. The Veteran has substantiated his status as a veteran. The Veteran was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in each of the letters. Contrary to VCAA requirements, some of the VCAA-compliant notice in this case was provided after the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The timing deficiency was cured by readjudication of the claim in multiple supplemental statement of the case (SSOCs), most recently in February 2013. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records. In its February 2012 remand, the Board instructed that the RO obtain VA treatment records and the private treatment records of Dr. Wyne. The VA treatment records were obtained via the Virtual VA system and the private and VA treatment records were submitted by the Veteran's attorney. The RO thus complied with the Board's remand instructions in this regard. In addition, the Board instructed that the Veteran be afforded a new VA examination, in light of the finding of the parties to the Joint Motion that the December 2010 VA examination was inadequate. The Veteran was afforded a December 2012 VA examination and the RO also obtained a January 2013 opinion from a different VA physician. For the reasons indicated below, the examination and opinion were adequate to decide the claim and the RO therefore complied with the Board's remand instructions in this regard as well. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claim for entitlement to service connection for cardiovascular disability, manifested by ventricular ectopy and arrhythmias, is thus ready to be considered on the merits. Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The Veteran's primary argument on this appeal, however, is that he has current cardiovascular disability manifested by ventricular ectopy and arrhythmias that is related to his service-connected PTSD or DM. As stated by his attorney during the Board hearing (p. 3), "while [the Veteran] may not have had a diagnosis of an arrhythmia on discharge the years of suffering post-traumatic stress disorder and diabetes, both service-connected disabilities are contributing to his arrhythmia or have contributed to his arrhythmia." Service connection is warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is also warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(b). This latter provision was added as part of an amendment intended conform VA regulations to Allen v. Brown, 7 Vet. App. 439 (1995), and also limited the circumstances in which VA would concede aggravation. See 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). As the new regulation, which took effect on October 10, 2006, after the Veteran filed his June 2006 claim, is more restrictive, the former regulation is applicable. In any event, the Board will find below that there is no aggravation. Initially, the Board notes that whether service connection is claimed on direct, secondary, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes). The term "disability" refers to not only a disease or injury, but also any "other physical or mental defect." 38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). The Board will therefore undertake the analysis below on the assumption that the abnormalities with which the Veteran has been diagnosed, ventricular ectopy and arrhythmias, are manifestations of cardiovascular disability even in the absence of specific diagnosis of such. The Veteran's attorney, and previously his agent, have submitted general medical evidence indicating that there is an association between diabetes (including medication taken for it, such as Metformin) and/or stress and arrhythmias and/or ventricular contraction. These include an article from Mayoclinic.com, a Wikipedia article about premature ventricular contraction, an article from abcnews.org, and an article from livestrong.com. These materials indicate that people with diabetes are at increased risk for cardiovascular disease, diabetes increases the risk of atrial fibrillation, diabetes is a common risk factor for coronary artery disease, chest pain is a rare but serious side effect of taking Metformin, it is possible for Metformin to cause heart palpitations, and that, although most people tolerate Glipizide without problems, side effects are possible, including chest pain, shortness of breath, and nervousness. The Court has indicated that treatise evidence may suffice to establish nexus in instances where "standing alone, [it] discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion." Sacks v. West, 11 Vet. App. 314, 317 (1998). The Board therefore accords some probative weight to the medical evidence submitted by the Veteran's agent and attorney, indicating a general association between cardiovascular symptoms and DM or medications and/or psychiatric symptoms, although the evidence does not address the specific facts of the Veteran's case. In addition, the parties to the Joint Motion found the December 2010 VA examination to be inadequate and the Board will therefore not consider it. The evidence also includes the December 2012 VA examination and January 2013 VA opinion. On the December 2012 VA examination, the VA examiner indicated the Veteran had been diagnosed with a "heart condition," specifically, ventricular arrhythmia and hypertensive heart disease (the latter issue is no longer before the Board). The VA examiner noted that, based on his interview of the Veteran and review of the claims file, he was diagnosed with premature ventricular contractions (PVCs) in 2001 and this had been successfully managed with a B- blocker since that time. The VA examiner also noted that the Veteran was followed by Dr. Wyne, who noted in June 2012 that the Veteran's PVCs had improved despite stress due to the loss of the Veteran's daughter to stomach cancer. The examiner noted a lack of history of ischemic heart disease, surgical procedures on the heart, angioplasties, or pacemakers/defibrillators. The examiner specifically indicated that the Veteran's heart condition did not qualify within the medically accepted definition of ischemic heart disease. He also noted that medication was required for PVCs and hypertension. The examiner indicated that the Veteran had cardiac arrhythmia that did not fit into any of the standard categories, and this "other" cardiac arrhythmia was intermittent (paroxysmal) with more than four episodes the past month documented by EKG, Halter monitor, and B- blocker. Physical examination was normal but the June 2012 EKG showing PVCs was noted as well as PVCs on MET testing. After noting he had reviewed the claims file, the examiner wrote that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by his service-connected conditions. The examiner explained that diabetes is a risk factor for ischemic heart disease, which is not the etiology of the Veteran's condition. He also noted that the Veteran indicated that his PTSD symptoms had started soon after service but symptoms of PVCs and non- sustained ventricular tachycardia did not begin until approximately 2001. There was therefore no time correlation between the two conditions. The Board notes that the Veteran is competent to testify to observations of psychiatric symptoms though not generally competent to diagnose PTSD, and the examiner was therefore entitled to consider the Veteran's statements as to onset of symptoms. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"). The examiner deferred consideration of the question of aggravation because there was no aggravation found. In January 2013, a different VA physician reviewed the claims file and addressed the question of whether the Veteran's ventricular ectopy was at least as likely as not incurred in or caused by medication taken for diabetes (Metformin and/or Glipizide). He concluded that such a relationship was less likely than not (less than 50 percent probability). He explained that neither Metformin nor Glipizide has ventricular arrhythmia or right ventricular outflow tract-related non-sustained ventricular tachycardia as a side effect listed in the well documented and easily obtained side effects list. The condition was of unknown etiology. The physician indicated that the supplied document attempting to link Glipizide to tachycardia is a misinterpretation because Glipizide can cause hypoglycemia and a symptom of hypoglycemia can be transient tachycardia of any type. This was not, however, causing the Veteran's condition, which is a chronic condition with a known anatomic cause, but, rather, was a transient effect that resolves when hypoglycemia resolves. The physician also noted that Metformin does not cause tachycardia at all and does not cause hypoglycemia. Therefore, the physician concluded that the ventricular ectopy was less likely as not (less than 50 percent probability) incurred in or caused by medication taken for diabetes (Metformin and/or Glipizide). Based on the above, the Board concludes that the December 2012 and January 2013 medical opinions are adequate and constitute probative evidence of significant weight that the Veteran's cardiovascular disability, manifested by ventricular ectopy and arrhythmias, is neither caused nor aggravated by service-connected PTSD or DM, or any medications taken for these disorders. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Each physician explained the reasons for his conclusion based on an accurate characterization of the evidence of record. The December 2012 VA examiner accurately noted that the PTSD and DM symptoms had begun prior to the cardiovascular symptoms and were therefore not likely caused by them. The first treatment note indicating PVCs was Dr. Kanaparti's December 2001 treatment note, which diagnosed right ventricular outflow tract non-sustained ventricular tachycardia controlled with medication, and indicated a history of premature ventricular complexes totally asymptomatic. Although Dr. Kanaparti indicated that there was a history of PVC, the December 2012 VA examiner's opinion indicated that the PVCs did not begin until "approximately" 2001, suggesting possible earlier treatment, and was therefore not based on an inaccurate factual premise. Cf. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based on an inaccurate factual premise is not probative). Moreover, his conclusion that there was no aggravation was supported by Dr. Wyne's treatment records indicating improvement in the PVCs. In addition, the January 2013 opinion that the DM medications did not cause the ventricular ectopy or arrhythmias, because the tachycardia caused by the Glipizide was a transient effect that resolves when hypoglycemia resolves, was broad enough to indicate that there was neither causation nor aggravation of the ventricular ectopy and arrhythmias, as the physician's statement indicated there was no relationship at all. El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (considering the possibility that language in a medical opinion could be considered to address aggravation without specifically using that word, but rejecting the argument on the facts of that case). The Board notes that, in Kittrell v. Shinseki, No. 08-3001, 2010 WL 4671873 (Vet. App. Nov. 10, 2010) (mem. dec., Moorman, J.), the Court addressed the argument that a medical opinion was inadequate because it was not stated in the precise terms found in 38 C.F.R. § 3.310. The Court rejected this argument, and held, "It is not required that a medical opinion regarding secondary service connection be stated in the precise terms found in § 3.310 to be considered adequate. To the contrary, this Court has emphasized that a physician's choice of language is not error where, as here, his opinion is unambiguous and sufficient to comply substantially with the purpose for which it was sought." Id. at *2 (citing Dyment v. West, 13 Vet.App. 141, 146- 47(1999)). The Court also held that the Board's decision relying on this opinion was not rendered inadequate "simply because the examiner did not use the 'magic words' of proximate causation." Id. The Court's decision was affirmed by the Federal Circuit and the Board finds its reasoning persuasive. See Kittrell v. Shinseki, No. 2011- 7102, 464 Fed. Appx. 902, 2012 WL 884871 (Fed. Cir. Feb 17, 2012) (unpublished order). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Consequently, the Board finds that the lack of specific reference to aggravation did not render the January 2013 VA opinion inadequate. Moreover, the December 2012 VA examiner found that there had been no aggravation of the cardiovascular disorder or symptoms. As the VA physicians explained the reasons for their opinions based on an accurate characterization of the evidence, these opinion are entitled to greater probative weight than the more general medical treatise evidence submitted, which indicated only a general relationship between cardiovascular symptoms and DM or medications or psychiatric symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). As to whether the Veteran and his attorney are competent to opine that ventricular ectopy and arrhythmias are caused or aggravated by PTSD or DM or medications taken therefor, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, testimony as to the relationship between ventricular ectopy and arrhythmias and PTSD and DM (and medications) appears to be testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). To the extent that the Veteran and his attorney are competent to offer an opinion on this question, the specific, reasoned opinions of the VA physicians are of greater probative weight than their more general lay assertions. The Board must also consider all theories of entitlement reasonably raised by the evidence of record. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (in direct appeals, all filings must be read in a liberal manner); EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (Board must review all issues reasonably raised from a liberal reading of all documents in the record). Establishing service connection on a direct incurrence basis generally requires competent evidence of three things: (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cardiovascular disease is listed in the statute and regulation and the Board will therefore consider whether the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) are for application. There is, however, no evidence in this case that cardiovascular disease was noted in or referred to in service. Rather, the STRs do not contain any notation of complaint, symptoms, treatment, or diagnoses relating to the cardiovascular system. Moreover, on the June 1969 separation examination, the heart and vascular systems were normal, and the Veteran indicated in the June 1969 report of medical history that he did not have and had never had shortness of breath, pain or pressure in chest, or palpitation or pounding heart. As there is no notation or indication of cardiovascular disease in service, the chronicity and continuity provisions of 38 C.F.R. § 3.303(b) are not for application. Moreover, the Veteran has not indicated that he experienced continuity of cardiovascular symptomatology. In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, including cardiovascular disease, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a). There is neither argument nor evidence, however, that cardiovascular disease manifested within the one year presumptive period, and entitlement to service connection is therefore not warranted on a presumptive basis. There is also a July 1976 examination, which appears to have been performed in connection with Reserve service, on which the heart and vascular systems were normal, indicating cardiovascular symptoms had not manifested within the one year presumptive period. As noted, the first treatment for ventricular ectopy with possible right ventricular outflow tract related non-sustained ventricular tachycardia in December 2001 and while the treatment note indicated that there was a history of PVCs, it did not indicate that this history was longstanding. Finally in this regard, VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases, including ischemic heart disease, are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran served in Vietnam is therefore presumed to have been exposed to Agent Orange. There is no argument or evidence, however, that he has ischemic heart disease. In fact, the December 2012 VA examiner specifically found there was no ischemic heart disease and the presumption was therefore inapplicable. The December 2012 VA examiner also found that the Veteran's heart condition did not have its onset during service, as the current heart diagnosis was made many years after service and is an electrophysiological diagnosis of uncertain etiology. For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to service connection for cardiovascular disability, manifested by ventricular ectopy and arrhythmias. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). ORDER Entitlement to service connection for cardiovascular disability, manifested by ventricular ectopy and arrhythmias, to include as secondary to service-connected PTSD and DM is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs