Citation Nr: 1330755 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-08 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Whether the severance of service connection for paroxysmal atrial fibrillation was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty for training with the United States Army National Guard (ARNG) from February 1977 to June 1977 and from September 1985 to December 1985. He had other service with the New Jersey ARNG from until December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which severed service connection for paroxysmal atrial fibrillation. In October 2008 prior to certification of the appeal to the Board, the Veteran's representative withdrew in writing the appeal for a higher initial disability rating for paroxysmal atrial fibrillation. In March 2010, the Veteran withdrew in writing his request for a Board hearing. FINDINGS OF FACT 1. The RO followed the proper administrative procedures to effectuate the severance of entitlement to service connection for paroxysmal atrial fibrillation. 2. An irregular heartbeat, diagnosed as paroxysmal atrial fibrillation, was first clinically manifested in October 1994 while the Veteran was on inactive duty for training. 3. A November 2007 award of service connection for paroxysmal atrial fibrillation was clearly based on incorrect information regarding the nature of the Veteran's service. CONCLUSION OF LAW The severance of the award of service connection for paroxysmal atrial fibrillation was proper. 38 U.S.C.A. §§ 1131, 5107, 5109A (West 2002); 38 C.F.R. §§ 3.6(d), 3.105(d) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 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 (West 2002 & Supp. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). Regarding the issue of whether severance of service connection for paroxysmal atrial fibrillation was proper, the Board notes that this matter arises from a severance of service connection by the RO. Therefore, it arises from action initiated by the RO, not the Veteran. As will be discussed below, severance of service connection requires compliance with particular notification procedures under the law, and the RO satisfied these requirements in the instant case by an October 2008 letter. Additionally, the Board observes that the Veteran was provided information regarding the laws and regulations applicable to a severance action (see statement of the case dated in February 2010). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the Veteran's service and post-service treatment records. VA examinations with respect to the disability on appeal were obtained in April 2007 and February 2008. 38 C.F.R. § 3.159(c)(4). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue being decided. II. Analysis The Veteran contends that the initial grant of service connection for paroxysmal atrial fibrillation was not based on clear and unmistakable error by the RO. He contends that his abnormal heartbeat was first detected in 1994 while he was on drill status and that service connection was warranted for paroxysmal atrial fibrillation. He also asserts that while working in his military occupational specialty, there were "numerous times that [he] was working in areas that contained heavy concentrations of refrigerant fumes from leaking or broken cooling units" and that his disability was due to that exposure. In October 2009, his representative submitted an excerpt of "EPA Section 608 Certification Study Guide" published by Martin Learning, which indicated that "inhaling refrigerant vapors in the air can lead to heart irregularities." Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Active military service includes any period of active duty for training (ACDUTRA) during which the individual was disabled from a disease or an injury incurred or aggravated in the line of duty, or a period of inactive duty training (INACDUTRA) during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22) ; 38 C.F.R. § 3.6(c). Inactive duty training includes duty prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard of the United States. 38 U.S.C.A. § 101(26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be inactive duty training. 38 C.F.R. § 3.6(d)(4). Once service connection has been granted, it can be severed only upon the Secretary's showing that the rating decision granting service connection was "clearly and unmistakably erroneous," and only after certain procedural safeguards have been met. 38 C.F.R. § 3.105(d). See also Daniels v. Gober, 10 Vet. App. 474, 478 (1997); Graves v. Brown, 6 Vet. App. 166 (1994). When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section [concerning predetermination hearings], if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). A review of the record shows that, in a November 2007 rating decision, the RO granted service connection for paroxysmal atrial fibrillation. The introduction listed his military service "in the Army" from February 1977 to June 1977 and with "the Army National Guard from January [] 1983 to December [] 1995." The Reasons for Decision indicated that service treatment records from February 1977 to December 1995 revealed an abnormal EKG in 1994 and on examination in April 1994, the examiner recommended a cardiac consultation with a stress test. The RO further noted that the Veteran gave a history of paroxysmal fibrillation on VA examination in April 2007 and that he was first diagnosed with an irregular heartbeat. Therefore, the RO concluded that service connection for paroxysmal atrial fibrillation was directly related to military service. The Veteran's active duty and ARNG service treatment records reflect that the Veteran checked "don't know" to ever experiencing pain or pressure in his chest in a May 1977 report of medical history, but crossed out that notation and checked "no." In subsequent reports of medical history dated in May 1982, January 1983, June 1990, and April 1994, he also denied currently or ever having pain or pressure in his chest, palpitation or pounding heart, or heart trouble. A November 1985 "Over 40 Screening Worksheet" noted a smoking history of ten years, a left axis deviation of EKG to be pursued as an abnormality, and a possible history of dyspnea (there were checkmarks for "yes" and "no"). A November 1985 memorandum recommended a cardiology consultation. In a March 1986 report of medical history, the Veteran endorsed having pain or pressure in his chest. Prior to April 1994, objective examination findings documented normal heart and vascular system in May 1977, May 1982, January 1983, March 1986, and June 1990. A June 1990 Medical Screening Summary - Cardiovascular Risk Screening Program also noted that the Veteran had been cleared for the Army's Physical Fitness Training and Testing Program. An April 1994 Medical Screening Summary indicated that the Veteran had one or more abnormal cardiovascular risk factors that were clinical markers for possible future cardiovascular problems in asymptomatic individuals. The report added that additional medical assessment and treatment rested with the physician. In October 1994, he was ordered to report for cardiovascular screening, which resulted in the discovery of an abnormal heartbeat. The Veteran's records of separation from service and from ARNG service list his military occupational specialty as automotive repairman and utilities equipment repairer. During an April 2007 VA heart examination, he stated that he worked in electronics after service until the past ten years when he worked as a mechanic for the postal service. He disclosed a history of smoking one pack of cigarettes per day for 30 days and quitting in 1994. In a September 2008 proposed rating action, the RO increased the initial rating for paroxysmal atrial fibrillation from the date of claim and advised the Veteran of the intent to sever service connection for paroxysmal atrial fibrillation. In concluding that severance was proper, the RO noted that the Veteran's only active service was from February 1977 to June 1977 and from September 1985 to December 1985, that the evidence showed that paroxysmal atrial fibrillation was first shown in 1994, and that there was no evidence that he was on active duty or ACDUTRA at that time. Additionally, the RO explained that paroxysmal atrial fibrillation was not one of the covered diseases for which service connection can be established for an individual who was serving on inactive duty for training at the time of diagnosis. In a separate October 2008 letter, the RO notified the Veteran of the proposed severance, his right to submit evidence in rebuttal, and his right to request a personal hearing. The letter also indicated that the current payments would continue for 60 days to allow the Veteran to submit evidence to show that the proposed action should not be taken and explained how to obtain a personal hearing. The Veteran did not submit additional evidence within 60 days or request a personal hearing regarding the proposed severance action. Thereafter, in a July 2009 rating decision, the RO determined that the earlier grant of service connection was clearly and unmistakably erroneous; and service connection for paroxysmal atrial fibrillation was severed effective October 1, 2009. The Board finds that the RO's actions complied with the due process provisions of 38 C.F.R. § 3.105(d). Turning to the merits, the United States Court of Appeals for Veterans Claims (Court) has set forth a three-pronged test to determine whether clear and unmistakable error (CUE) is present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that time were incorrectly applied; (2) the error must be "undebatable" and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994), Russell v. Principi, 3 Vet. App. 310 (1992). The Court has further stated that a CUE is a very specific and a rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993) (citing Russell, 3 Vet. App. at 313). The Court has held that the same CUE standard that applies to a veteran's CUE challenge to a prior adverse determination under § 3.105(a) is also applicable in the Government's severance determination under § 3.105(d). "Once service connection has been granted, section 3.105(d) provides that it may be withdrawn only after VA has complied with specific procedures and the Secretary meets his high burden of proof." See Wilson v. West, 11 Vet. App. 383 (1998); see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) ("In effect, § 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned"). See also Graves, 6 Vet. App. at 170 (holding that clear and unmistakable error is defined the same under 38 C.F.R. § 3.105(d) as it is under § 3.105(a)). In a severance case , the evidence that may be considered in determining whether severance is proper under section 3.105(d) is not limited to the evidence before the RO at the time of the initial service connection award. See Daniels, 10 Vet. App. at 480; cf. Venturella v. Gober, 10 Vet. App. 340, 342-43 (1997). The Court has reasoned that because section 3.105(d) specifically contemplates that a change in diagnosis or change in law or interpretation of law may be accepted as a basis for severance, the regulation contemplates the consideration of evidence acquired after the original granting of service connection. The Court also has reasoned that "[i]f the Court were to conclude that . . . a service connection award can be terminated pursuant to section 3.105(d) only on the basis of the law and record as it existed at the time of the award thereof, the VA would be placed in the impossible situation of being forever bound to a prior determination regardless of changes in the law or later developments in the factual record." Venturella, 10 Vet. App. at 342-43. As noted above, the RO's decision to sever service connection for paroxysmal atrial fibrillation was based on its determination that the Veteran was not entitled to service connection because he was not on active duty or ACDUTRA when an irregular heartbeat was first shown in 1994, and because paroxysmal atrial fibrillation is not one of the covered diseases for which service connection can be established for an individual who was serving on INACDUTRA at the time it was first discovered. Here, the Board notes that while 38 C.F.R. § 3.6(a) limits service connection for diseases incurred during INACDUTRA to acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident, the regulation does not limit service connection for disability from a disease incurred during ACDUTRA. Although the RO's statement that paroxysmal atrial fibrillation was not a covered disease for purposes of establishing service connection for disease incurred during ACDUTRA was incorrect, this misstatement does not affect the outcome of the Veteran's case because the evidence of record does not document any periods of ACDUTRA around that time. Since the July 2009 decision, the Veteran has submitted additional medical and personnel records from his ARNG service. A letter dated October 4, 1994 from the Major General of the New Jersey ARNG ordered the Veteran to active duty for special work (ADSW) for the purpose of reporting to a medical clinic for cardiovascular screening. Service treatment records reveal that he reported to the examination, was found to have an irregular heartbeat on stress testing, and was transported to JFK Medical Center where he was admitted for evaluation for three days. A Statement of Medical Examination and Duty Status (DA Form 2173) indicated that on October 4, 1994, the Veteran was found to have a heart abnormality while on inactive duty training. Subsequent ARNG treatment records reflected additional cardiovascular testing and evaluation at Walter Reed Army Medical Center before his discharge from ARNG service in December 1995. Given the above, the Board concludes that the November 2007 award of service connection for paroxysmal atrial fibrillation was clearly in error. At that time, the RO did not accurately identify his periods of service and mistakenly concluded that his cardiovascular disability first discovered in 1994 was incurred during active duty or ACDUTRA. Moreover, since then, the Veteran has presented evidence from the Service Department confirming that he was on INACDUTRA on October 4, 1994 when his irregular heartbeat, later diagnosed as paroxysmal atrial fibrillation, was first detected. Accordingly, the severance of service connection for paroxysmal atrial fibrillation, on the basis of CUE, was proper, and the appeal is denied. To the extent that the Veteran may believe that his paroxysmal atrial fibrillation was caused by inhaling refrigerants, the Board finds that the excerpt from the Study Guide submitted by his representative in October 2008 is not competent medical evidence to support the incurrence of an injury to his heart caused by refrigerants or a disease process provoked by such an exposure during military service. The Court has addressed the use of medical articles by claimants to support their claims. In Sacks v. West, 11 Vet. App. 314, 317 (1998) the Court said that medical treatise information, in general, is too uncertain to show etiology. The Court also held that medical articles or treatises "can provide important support when combined with an opinion of a medical professional." Id. Finally, the Court further held that a medical article or treatise may provide sufficient evidence of a causal connection when it "discusses generic relationships with a degree of certainty" so that the causal connection is "based upon objective facts rather than on an unsubstantiated lay medical opinion." Id. VA is obliged to provide an examination or obtain a medical opinion in a claim for service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between current disability and service is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon, 20 Vet. App. at 83. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. There must, however, be sufficient evidence of such a relationship to trigger VA's duty to provide an examination or obtain a medical opinion. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Here, the evidence does not reflect and the Veteran does not contend that his paroxysmal atrial fibrillation was manifested during active duty or ACDUTRA. Rather, competent medical evidence reflects that the fibrillation was first manifested in 1994, more than nine years after separation from his last period of ACDUTRA. In addition, the Board finds that both the Study Guide excerpt and the Veteran's lay statements regarding exposure to refrigerants are insufficient to warrant obtaining a VA medical opinion regarding the etiology of his atrial fibrillation because the excerpt only vaguely identifies "heart irregularities" that may result from inhaling refrigerant vapors, but does not specifically address paroxysmal atrial fibrillation. Therefore, VA is not required to obtain a medical opinion regarding his current paroxysmal atrial fibrillation manifested in 1994 and his alleged exposure to refrigerant fumes during service. In summary, the probative evidence does not suggest that the Veteran's paroxysmal atrial fibrillation became manifest during a period of active duty or ACDUTRA service. Rather, the evidence establishes that one or more risk factors for cardiovascular problems were identified in April 1994, and an irregular heartbeat became manifest in October 1994 while on inactive duty training. Service connection for paroxysmal atrial fibrillation was granted on the basis that it was incurred during active duty service or ACDUTRA. This is the result of clear and unmistakable error in the application of the governing law and regulations which establish that service connection for a disease cannot be granted when shown on INACDUTRA other than acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. Thus, the Board finds the November 2007 rating decision was clearly and unmistakably erroneous in granting service connection for paroxysmal atrial fibrillation; severance of service connection by the July 2009 rating decision was proper. ORDER Severance of service connection for paroxysmal atrial fibrillation, effectuated by a July 2009 rating decision, was proper, and the appeal is denied. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs