Citation Nr: 1335681	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  10-26 345	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a heart disorder.  

2.  Entitlement to service connection for residuals of a stroke, to include as secondary to a heart disorder.

3.  Entitlement to service connection for residuals of a concussion.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1943 to May 1946.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In August 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.

The issues of entitlement to service connection for a heart disorder and stroke residuals were remanded by the Board in December 2012.  The Board finds that there has been substantial compliance with its remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).

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 concussion residuals is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  A heart disorder is related to service.

2.  Stroke residuals are related to the Veteran's service-connected heart disorder.  


CONCLUSIONS OF LAW

1.  The criteria for entitlement to service connection for a heart disorder have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).

2.  The criteria for entitlement to service connection for stroke residuals have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

Since the Board is granting entitlement to service connection for a heart disorder and stroke residuals, the entire benefit sought on appeal has been granted.  Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA.  See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38  C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).  

The Veteran contends that his heart disorder began in service and that he had a stroke as secondary to this disorder.  For the reasons discussed below, the Board finds that service connection is warranted.

The Veteran's service treatment records are unavailable.  However, the Board notes that the Veteran has been awarded medals indicative of his participation in combat - namely, the Combat Infantryman Badge and the Purple Heart.  The Veteran asserts that during combat a bomb exploded near him causing a concussion.  He believes this event is related to a subsequent stroke and his current heart disorder.  As the Veteran is a combat veteran and his recollection of events is consistent with the circumstances of his service, the Board finds that his report of an explosion near him during service to be credible.  See 38 U.S.C.A. § 1154(b).  

The Veteran also testified that during service he was told he had a heart condition with uneven beats, skipping beats, and irregularity.  See August 2012 Board hearing transcript.  

The Veteran's private treatment records reveal he had a stroke in 2005.  He has also been diagnosed with atrial fibrillation.  See May 2005 private treatment records.
The July 2011 VA examiner did not relate the Veteran's heart condition or stroke to service as there was no evidence that a concussion occurred.  As discussed, the Board has conceded the in service event.

Examinations were performed in February 2013 where the examiner diagnosed the Veteran with atrial fibrillation, but did not offer an opinion as to its etiology.  The February 2013 VA examiner did relate the Veteran's stroke to his atrial fibrillation.

At his August 2013 VA heart examination the Veteran reported palpitations which began shortly after the explosion in service and the palpitations continued intermittently following service.  The examiner opined it was more likely than not that the Veteran developed a cardiac rhythm disturbance following the in service explosion and that this continued and progressed in the following years.  

At his August 2013 VA examination for central nervous system and neuromuscular diseases the examiner noted the Veteran's 2005 stroke.  He opined that it was more likely than not that the Veteran's stroke was caused by his atrial fibrillation as it is a known causal risk factor for embolic cerebral events.  

The Board will resolve reasonable doubt in favor of the Veteran, and grant his claims of service connection.  38 U.S.C.A. § 5107 (West 2002).  To the extent that the August 2013 physician's opinion is based on statements provided by the Veteran regarding his irregular heartbeat, the Board finds that these statements are competent, as they address observable symptoms such as a large mass on the right leg and pain.  See 38 C.F.R. § 3.159(c)(2); see also Layno v. Brown, 6 Vet. App. 465 (1991).  Moreover, these statements are credible as they are generally consistent with each other and with the other evidence of record.  Therefore, service connection is warranted.

The RO will assign an appropriate disability rating.  Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as, although related, each having a distinct meaning as specified by Congress).

ORDER

Entitlement to service connection for a heart disorder is granted.

Entitlement to service connection for residuals of a stroke is granted.


REMAND

In the December 2012 Board remand the Agency of Original Jurisdiction (AOJ) was instructed to obtain an opinion to determine if the Veteran had residuals of his concussion from service.  No examination was provided and the Board finds the previous, July 2011 VA examination report to be invalid.  A new opinion should be obtained 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) (2012).  Expedited handling is requested.)

1.  Have an appropriate VA physician provide an opinion to determine if the Veteran has concussion residuals related to service.  The entire claims file (i.e. any medical records contained in Virtual VA, CAPRI, and AMIE), to include this REMAND, must be reviewed by the examiner in conjunction with the opinion.  If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review.  The examiner should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination.  

Following review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran has any residuals from an injury causing loss of consciousness during service.

For purposes of the opinion, the examiner should accept as fact that the Veteran lost consciousness after a bomb exploded near him during service.  A rationale for all opinions expressed should be provided.

If further examination of the Veteran is necessary to provide the requested opinion, the Veteran should be scheduled for an additional examination.  It is the Veteran's responsibility to report for any examination scheduled, and to cooperate in the development of the case; the consequences of failing to report for a VA examination without good cause may include denial of the claim.  See 38 C.F.R. §§ 3.158, 3.655 (2013).

2.  After the above has been completed, the AOJ must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full.  If any development is incomplete, appropriate corrective action must be implemented.  If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action.  Stegall, above.

3.  After undertaking any additional development deemed necessary, readjudicate the remaining issue on appeal.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond.  The case must then be returned to the Board for further appellate review, if otherwise in order.

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 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).



______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs