Citation Nr: 1335243 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 09-15 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for residuals of an abdominal aortic aneurysm, status post graft procedure. 2. Entitlement to service connection for a heart disorder, to include as due to an AAA. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to June 1982. The record also indicates that the Veteran enlisted in the U.S. Army Reserves in August 1994 and was discharged in May 2007. See August 1994 enlistment medical examination and discharge order dated May 24, 2007 from Department of the Army Headquarters, 7th Division in Edison, New Jersey. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of the Newark, New Jersey Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a January 2010 Travel Board hearing, the transcript of which is included in the VA paperless claims processing system. In April 2013, the Board remanded this matter for additional development. Pursuant to the April 2013 remand instructions, the Veteran's post-service VA treatment records from the VA Hospital in Brick, New Jersey were obtained and service treatment records from 2006 were requested by the RO. The RO also made a formal determination as to the Veteran's Army Reserve service. The claims were readjudicated in a July 2013 supplemental statement of the case. This appeal was processed using the Veterans Benefits Management System. Accordingly, any future consideration of this 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) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of service connection for a heart disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDING OF FACT The evidence is in equipoise as to whether the Veteran sustained an abdominal aortic aneurysm during a period of active duty for training (ACDUTRA). CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for residuals of an abdominal aortic aneurysm have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting service connection for residuals of abdominal aortic aneurysm, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes active duty, and "any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (2013). ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or an injury incurred or aggravated during INACDUTRA, but presumptive periods do not generally apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases first manifested after separation) for periods of ACDUTRA or INACDUTRA is not appropriate in this case. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Further, a veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C.A. § 1111 (West 2002). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry 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. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for residuals of an abdominal aortic aneurysm During his January 2010 hearing, the Veteran indicated that he experienced abdominal pain during physical training while on a period of Reserve service in either June 2006 or August 2006. The Veteran has not contended, and the record does not otherwise reflect, that an abdominal aortic aneurysm occurred during active duty service (i.e., from September 1975 to June 1982); therefore, the Board will only consider whether service connection is warranted for the periods of ACDUTRA or INACDUTRA. At the outset, the Veteran testified that he served in the Reserves from 1993 to 1996, 2000 to 2004, and from 2005 to 2007. Pursuant to the Board's April 2013 remand, records were obtained which revealed that in the year 2006, the year the abdominal aortic aneurysm purportedly first manifested, the Veteran served on ACDUTRA on January 6, 2006, and from March 6, 2006 to March 12, 2006. He also attended drills on January 7, 2006, January 8, 2006, February 4, 2006, February 5, 2006, March 4, 2006, March 5, 2006, April 7, 2006, April 8, 2006, April 9, 2006, and May 6, 2006. No dates of ACDUTRA or INACDUTRA are shown for June 2006 or August 2006. See Veteran's Leave and Earnings Statement Pay Data; see also RO's formal determination to the Veteran's Reserve service in July 2013 supplemental statement of the case. The Board finds that an abdominal aortic aneurysm was not noted upon entrance into Reserve service. The entrance examination report in August 1994 noted a normal clinical evaluation, to include the abdomen. Further, in an August 1994 report of medical history, completed by the Veteran in conjunction with enlistment into the Army Reserve, the Veteran noted that he was in good health and denied stomach trouble. For these reasons, the Board finds that the presumption of soundness applies in this case. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board further finds that the Veteran has a current diagnosis of abdominal aortic aneurysm, status post graft procedure. See June 2010 VA examination report. Upon review of all the evidence of record, both lay and medical, including the Veteran's statements and hearing testimony, the Board finds that the evidence is in equipoise as to whether the Veteran's abdominal aortic aneurysm had its onset in or was incurred during a period of ACDUTRA. Weighing against the claim for service connection are service treatment records which are negative for any complaints, diagnosis, or treatment for an abdominal aortic aneurysm during ACDUTRA service. That notwithstanding, the Veteran credibly stated that he experienced abdominal pain sometime in June 2006 or August 2006 while performing a physical test during a Reserve drill weekend. See January 2010 Hearing Transcript at pgs. 5-6. The Veteran credibly testified that he did not seek immediate treatment, but instead, waited until the next morning when he went to the emergency room at Brick Hospital in Brick, New Jersey. According to the Veteran, symptoms persistent and he returned to the emergency room where a CT scan was conducted and revealed a four centimeter abdominal aortic aneurysm. See June 2010 VA examination report. In January 2007, the Veteran underwent an endovascular graft and the aneurysm was repaired. Upon review of all the evidence of record, to include the Veteran's credible statements and hearing testimony and the medical evidence, and resolving reasonable doubt in his favor, the Board finds the Veteran sustained an abdominal injury during ACDUTRA service and service connection for residuals of an abdominal aortic aneurysm is warranted. In a June 2010 VA examination report the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. The VA examiner diagnosed the Veteran, in pertinent part, with abdominal aortic aneurysm, status post graft procedure. According to the VA examiner, sometime between 1994 and his presenting symptoms in 2006, the Veteran developed hypertension, an enlarged heart, ischemic heart disease, heart failure and an abdominal aortic aneurysm. Although the VA examiner opined that the Veteran's abdominal aortic aneurysm was less likely as not caused by or a result of his service, the rationale provided in support of the medical opinion demonstrates that the abdominal aortic aneurysm first manifested during a period of ACDUTRA service. Specifically, the VA examiner stated that the stomach pain and low back pain that the Veteran complained about during physical training in service were the presenting symptoms of his aneurysm and indicated that the aneurysm had its onset something between 1994 and his presenting symptoms in 2006. The Veteran had periods of ACDUTRA in 2006 and the examiner indicated that the onset of the aneurysm was prior to the presenting symptoms, which the Veteran had indicated were in June or August 2006. Therefore, resolving any doubt in the Veteran's favor, the Veteran's abdominal aortic aneurysm had its onset during a period of ACDUTRA and service connection for residuals of an abdominal aortic aneurysm, status post graft procedure is warranted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. (CONTINUED ON NEXT PAGE) ORDER Service connection for residuals of an abdominal aortic aneurysm, status post graft procedure is granted. REMAND As to the claim for service connection for a heart disorder, the Veteran contends that the in-service AAA led to various heart disorders. In the June 2010 VA examination report, the VA examiner diagnosed congestive heart failure, history of coronary heart disease, history of myocardial infarction, cardiomyopathy, and uncontrolled hypertension. The VA examiner opined that the Veteran's heart failure, cardiomyopathy and ischemic heart disease were less likely as not caused by or a result of his service. However, the VA examiner also indicated that between 1994 and 2006, a timeframe which includes periods of ACDUTRA service, the Veteran developed hypertension, an enlarged heart, ischemic heart disease, heart failure and an abdominal aneurysm. The Board finds these statements contradictory as the VA examiner did not explain how the heart disorders, purportedly having developed between periods of ACDUTRA service, were less likely as not related to service. As such, the Board finds that further clarification is needed. Additionally, as the Veteran is now, pursuant to this decision, service-connected for AAA, status post graft procedure, a medical opinion is need to assist in determining whether the in-service incurred AAA caused or permanently aggravated the currently diagnosed heart disorder(s). See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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 RO/AMC should refer the case for an appropriate VA vascular examination to address the etiology of the Veteran's heart disorders. If such examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The claims folder, to include a copy of this remand, must be made available to the examiner for review. The examiner should review the entire claims folder, to include service treatment records. The VA examiner should respond to the following: (a) State whether it is at least as likely as not (i.e., 50 percent or greater probability) that the currently diagnosed heart disorders were incurred in or are otherwise related to service. (b) State whether it is at least as likely as not that the heart disorders are either caused or permanently aggravated by the service-connected AAA. If it is determined that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected condition before the onset of aggravation. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner must provide a complete rationale for his or her opinion with references to the evidence of record. 2. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefits sought are not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. 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 of Veterans' Appeals 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs