Citation Nr: 1333098 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-24 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a heart disability, to include cardiomyopathy and congestive heart failure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board remanded the Veteran's claim for additional development in December 2010 and January 2013. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND A review of the claims file reveals that a remand is unfortunately necessary in order to properly adjudicate the claim on appeal. The Veteran's claims file was previously remanded to obtain VA examinations with etiology opinions. As an initial matter, the Board notes that the most recent VA examiner was requested to specify whether the Veteran had a pre-existing heart disability at his entrance to service. A Veteran who served in the active military, naval, or air service after December 31, 1946, is 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. § 1132 (West 2002). Only those conditions recorded in examination reports can be considered as noted and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b) (2013). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the Veteran about the pre-service history of his condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). Review of the Veteran's service medical records shows that clinical evaluation of the Veteran's heart was normal at his entrance examination dated in April 1971. An examiner noted that a prominence of the pulmonary knob was seen on x-ray but no murmur was audible. The Veteran was seen for complaints of chest pain on several occasions including in September 1974, February 1975, August 1975, and February 1982. In September 1974 and August 1975, it was noted that recurrent chest pains had been present for a number of years. The chest pain was primarily noted to occur on the left side of the Veteran's chest, specifically in the left axillary line and retro-sternal areas. In August 1975, an eletocardiogram (EKG) was recommended pursuant to a periodic service examination, and the EKG report shows a notation of incomplete right bundle branch block. Presumably, based upon the EKG report, a provisional diagnosis of possible right branch bundle block was made in August 1975. Other diagnoses in the service records related to chest pain include musculoskeletal chest pain and muscle spasms. Additionally, there is an undated radiographic report that notes questionable cardiac contour. The service medical records also document other symptoms subsequently associated with the Veteran's heart condition, including numbness in the neck and arm associated with chest pain and shortness of breath. During a medical board examination in December 1984, conducted due to an unrelated back disability, the Veteran's heart was noted to be normal upon clinical evaluation. However, the examination report notes that EKG testing revealed a right axis deviation. The Board finds that the Veteran's report of dizziness and fainting as a child noted at his entrance examination does not show that any disability was noted on entrance to service, and does not show by clear and unmistakable evidence that a heart disability pre-existed service. Something more than a pre-service history must be recorded in a report of an induction or enlistment examination in order for a condition to be deemed noted. 38 U.S.C.A. § 1111 (West 2002). Although the record shows that the Veteran reported a history of dizziness and fainting when he was examined for entry, no heart disability was ever noted in the report of any examination undertaken in connection with the Veteran's entry into service. Additionally, while a chest x-ray apparently revealed prominence of a pulmonary knob at entrance, no murmur was noted to be audible and no specific diagnosis of any heart disability was noted at that time. Clinical evaluation of the Veteran's heart was reported to be normal at his entrance to service. Because no heart disability was noted at the time of the Veteran's examination, acceptance, and enrollment into service, the Board finds that he is entitled to the presumption of soundness. Several VA medical opinions are of record. In January 2011, a VA medical opinion indicates that the Veteran's heart condition was not due to ischemic heart disease. The examiner also opined that a review of the Veteran's service medical records did not indicate that the Veteran had heart failure or any condition that would lead to heart failure while he was on active duty and his heart condition was not related to military service. The examiner did not consider the various reports of chest pain and other cardiac symptomatology noted in the Veteran's service medical records. In February 2013, following a physical examination and review of the relevant medical history, a VA examiner determined that the Veteran's chest pain in service was of unknown etiology and was not related to cardiomyopathy diagnosed in 1992. The examiner noted that the Veteran's cardiomyopathy was not due to myocarditis and congestive heart failure was as likely as not due to cardiomyopathy. The examiner concluded that chest pain, cardiomyopathy, and congestive heart failure were not as likely as not due to, caused by, or incurred in service. The same examiner, in a May 2013 addendum opinion, indicated that the Veteran's report of dizziness and fainting symptoms that he had prior to service were consistent with early manifestations of dilated cardiomyopathy which was diagnosed in 1992 and therefore cardiomypathy would be a pre-existing condition prior to military service. That examiner concluded that the Veteran's heart condition was not as likely as not due to, caused by, or incurred in active duty service. The Veteran in this case is presumed sound at his entrance to service. Therefore, it remains unclear whether any of the Veteran's cardiac symptomatology noted in the service medical records was early manifestations of any current heart disability. Consequently, another VA examination and etiology opinion are necessary in order to properly adjudicate the claim. Additionally, VA outpatient treatment reports dated through December 2011 show treatment for the Veteran's heart disability. Because there may be outstanding VA medical records that contain information pertinent to the Veteran's claim, an attempt to obtain such records should be made. 38 C.F.R. § 3.159(c)(2) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment reports dated since December 2011. 2. Then, schedule the Veteran for a VA examination with the appropriate specialist to assess the nature and etiology of any current heart disability, to include dilated non-ischemic cardiomyopathy and congestive heart failure. The claims file and Virtual VA electronic claims file should be reviewed by the examiner and the examination report should note that review. The examiner should provide a rationale for the opinion and reconcile it with all pertinent evidence of record including (1) the Veteran's service medical records which show evidence of chest pain, shortness of breath, and abnormal EKG findings during service; (2) his VA medical records which indicate that he was diagnosed with congestive heart failure secondary to idiopathic cardiomyopathy in 1992, and subsequently received ongoing treatment for that condition; and (3) the VA medical opinions of record including the January 2011, February 2013, and May 2013 VA medical opinion reports. Additionally, the examiner should consider the Veteran's statements regarding in-service incurrence of his heart condition and continuity of cardiac symptomatology since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Specifically, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any heart disability, to include dilated non-ischemic cardiomyopathy and congestive heart failure, is related to the Veteran's period of active service and his cardiac complaints and treatment during service. The examiner should only consider the cardiac symptomatology noted in service and should not consider any pre-service cardiac symptomatology as the Veteran is presumed sound at his entrance to service. 3. Then, readjudicate the issue on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).