Citation Nr: 1332459 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-30 116 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a heart disorder manifested by heart palpitations and mitral valve prolapse (MVP). 2. Entitlement to service connection for a heart disorder manifested by arteriosclerosis and a myocardial infarction, to include as secondary to a heart disorder manifested by heart palpitations and MVP. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from January 1952 to November 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision (issued in April 2009) by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In October 2010, the Veteran testified before a Decision Review Officer at a hearing at his local RO. A transcript of the hearing is associated with the claims file. This appeal was remanded by the Board in February 2013 and June 2013 for additional evidentiary development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of this electronic record. 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). The issue of entitlement to service connection for a heart disorder manifested by arteriosclerosis and a myocardial infarction requires additional development and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT The Veteran had heart palpitations due to MVP that occurred within one year of separation from service and it is at least as likely as not that the heart palpitations and MVP were incurred in or otherwise related to his military service. CONCLUSION OF LAW A heart disorder manifested by heart palpitations and MVP was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for a heart disorder manifested by heart palpitations and MVP herein is completely favorable, no further action with respect to this claim is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including cardiovascular-renal disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). With respect to tinnitus, the Court has specifically found that this is a disorder capable of lay observation. Charles, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When, as here, service treatment reports (STRs) are lost or missing, through no fault of the Veteran, VA has a heightened duty to consider the applicability of the benefit of the doubt rule to assist him in developing his claim. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran is seeking service connection for a heart disorder manifested as heart palpitations and MVP. In support of his claim, the Veteran has asserted that he began having heart palpitations shortly after service in approximately 1954, after which he sought treatment at VA and was told he had a heart irregularity that was nothing to worry about. The Veteran has stated that he visited the VA Hospital in Indianapolis two times in the 1950s but he was not diagnosed with mitral valve prolapse until several years later. He has asserted that, at that time, he was experiencing periods of short term heart palpitations and dizzy spells that still occur today. Aside from the October 1953 separation examination, which was negative for a heart disorder, there are no STRs of record. After service, an Application for Hospital Treatment or Domiciliary Care, VA Form 10-P-10 dated in February 1955 (approximately 15 months after the Veteran's separation from military service), notes that the Veteran gave a history of a "catching" sensation which was felt under the lower end of the sternum in October 1954 (within one year of the Veteran's separation from military service). The attack lasted two days and stopped spontaneously without treatment. Thereafter, in February 1955, the Veteran had a recurrence of the same symptoms. He stated that the catching sensation may last for only a second or may continue for several minutes. Also, the Veteran had an attack of the same nature in January 1955. He reportedly became nauseated if he started to worry about it. A private physician reportedly told the Veteran that it was "nervousness" and gave him something for acidity. The impression was anxiety reaction. Approximately 39 years later, in May 1994, the Veteran suffered a myocardial infarction. To address the Veteran's contentions in light of the evidence summarized above, the Board remanded the claim in February 2013, in part, for a VA examination, which was conducted in March 2013. At such time, the Veteran's reported medical history of a diagnosis of MVP in the 1960s and a myocardial infarction in 1994 was noted. Following an examination, the VA examiner opined that it was at least as likely as not that the Veteran's MVP was incurred or caused by service, noting that the Veteran was seen for catching in his chest within one year of service and was diagnosed with MVP a few years later. In the June 2013 remand, the Board found that it was not clear when MVP was initially diagnosed, as there was no objective medial evidence of the initial diagnosis of MVP and the lay evidence regarding the date of the initial diagnosis was inconsistent. Specifically, the Board found the lay evidence to be inconsistent because, in October 2008, the Veteran reported that MVP was diagnosed years after he sought VA treatment in the 1950s and, in June 2010, he similarly reported that an EKG conducted many years after service revealed he had MVP. See statements from the Veteran dated October 2008 and June 2010. Moreover, in September 2009, the Veteran reported being told he had MVP about 25 years prior thereto (which the Board notes would be approximately in 1984) while at the March 2013 VA examination, the Veteran reported that he was diagnosed with MVP in the 1960s. As such, the Board found that the probative value of the March 2013 VA opinion was in question as such was based, at least partially, on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise has no probative value). To address the potential inadequacy of the March 2013 VA examination, the June 2013 remand directed that the claims file be returned to the March 2013 VA examiner for an addendum opinion as to whether his MVP was incurred in or otherwise related to his military service based on the full record, to include service treatment records and the Veteran's lay statements. The instructions to the examiner were that the Veteran's lay statements regarding the nature and onset of his heart symptoms were competent but that there was inconsistent lay evidence regarding when he was initially diagnosed with MVP. In addition, the examiner was requested to specifically consider the February 1955 application for hospital treatment or domiciliary care that contained the Veteran's history of a "catching" sensation under the lower end of the sternum in October 1954 (within one year of the Veteran's separation from military service), as well as the subsequent private treatment records showing that the Veteran experienced a myocardial infarction in May 1994 with complaints of heart palpitations. The requested opinion, completed in August 2013, was again positive, as the examiner (the same examiner who conducted the March 2013 VA examination) concluded as follows: With thorough review of the Veteran's documents in VBMS to include the [February 1955 application for hospital treatment or domiciliary care], it is determined that the Veteran most likely had heart palpitations (with the catching sensations he felt and subsequent nausea and/or anxiety). These were most likely caused by his later diagnosed mitral valve prolapse (MVP) as these are all common and known symptoms of MVP. Therefore, as the palpitations (due to MVP) occurred within one year of leaving service, it at least as likely as not that the Veteran's mitral valve prolapse was incurred in or [is] otherwise related to his military service. There is no evidence contradicting either positive medical opinion of record, and unless the preponderance of the evidence is against a claim, it cannot be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. From the above, while there has been some inconsistency in the pertinent history provide by the Veteran, it cannot be said that the preponderance of the evidence is against the claim for service connection for a heart disorder manifested by heart palpitations and MVP; as such, all reasonable doubt has been resolved in the Veteran's favor, and service connection for such disability is warranted. Id. Cromer, supra. ORDER Service connection for a heart disorder manifested by heart palpitations and MVP is granted. REMAND Although the Board regrets the additional delay, a remand is necessary with respect to the claim for service connection for a heart disorder manifested by arteriosclerosis and a myocardial infarction to ensure that due process is followed and that there is a complete record upon which to decide this claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this regard, the June 2013 remand requested opinions as to whether it was as likely as not that the Veteran's arteriosclerosis or myocardial infarction were incurred in or aggravated by service. The opinions rendered in August 2013 as to whether either condition was directly related to service were negative, and it was also noted by the examiner that her review of the medical literature showed "no known association" between either condition and MVP. However, theses opinions did not specifically address whether any disability associated with arteriosclerosis and/or a myocardial infarction may nevertheless have been aggravated by disability associated with heart palpitations and/or MVP, for which service connection has been granted by the above decision. See 38 C.F.R. § 3.310; Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). As such, the Board concludes that in order to fulfill the duty to assist the Veteran, another addendum opinion regarding the secondary aspect of his claim for service connection for arteriosclerosis and/or myocardial infarction is necessary to decide the claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d); 38 C.F.R. 3.159 § (c)(4). Additionally, the Veteran has not been provided with proper VCAA notice regarding the secondary aspect of his claim of entitlement to service connection for a heart disorder manifested by arteriosclerosis and a myocardial infarction. Such should be accomplished on remand. Accordingly, the case is REMANDED for the following action: Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested. 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for a heart disorder manifested by arteriosclerosis and a myocardial infarction as secondary to his service-connected heart disorder manifested by heart palpitations and MVP. 2. Return the claims file to the VA examiner who rendered the August 2013 opinion. The claims file (VBMS) and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the VBMS file and the Remand have been reviewed. If the August 2013 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not that any currently diagnosed heart disorder other than heart palpitations and MVP, to include arteriosclerosis and/or a myocardial infarction is aggravated by (increased in severity due to) the Veteran's service-connected heart disorder manifested by heart palpitations and MVP If the opinion is that any such disability is aggravated by the service-connected heart palpitations and MVP, the examiner should specify, to the extent possible, the degree of disability (pathology/impairment) that is due to such aggravation. The opinion should be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The examiner must state in the examination report that the VBMS file has been reviewed. 3. After completion of the above, the agency of original jurisdiction (AOJ) should review the expanded record and determine whether the claim for service connection for a heart disorder manifested by arteriosclerosis and a myocardial infarction, to include as secondary to service-connected disability of heart palpitations and MVP, may be granted. To the extent the claim is denied, the AOJ should furnish the Veteran and his representative with an appropriate Supplemental Statement of the Case (SSOC) that includes consideration of entitlement to service connection on a direct basis as well as secondary to the service-connected heart disorder manifested by heart palpitations and MVP. The SSOC should also document consideration of any records added to VBMS after the August 2013 SSOC. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs