Citation Nr: 1340033 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-33 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for valvular heart disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from April 13, 1953 to June 24, 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which determined that new and material evidence had not been submitted to reopen the previously denied claim. In March 2013, the Board reopened the matter and remanded it for further development. In August 2013, the Board sought a VHA advisory medical opinion, which was received in October 2013. 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). FINDING OF FACT The Veteran's valvular heart disease is causally related to his active duty service. CONCLUSION OF LAW Valvular heart disease was incurred in the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). The Board notes that RO letters in April 2008 and December 2008 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. Legal Criteria, Factual Background, and Analysis The issue before the Board involves a claim of entitlement to service connection for chronic heart disease. Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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 disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132. VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, 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. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Court has held that lay statements by a veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See e.g., Gahman v. West, 13 Vet. App. 148, 150 (1999) (recorded history provided by a lay witness does not constitute competent medical evidence sufficient to overcome the presumption of soundness, even when such is recorded by medical examiners). The Veteran claims entitlement to service connection for rheumatic or valvular heart disease. He primarily contends that his current heart disease first manifested in service. The Board has reviewed all of the evidence of record. The Veteran's service treatment records (STRs) do reflect findings of heart disease. On January 1953 service entrance examination, the heart was normal on clinical evaluation. In May 1953, it was noted that the Veteran had had shortness of breath on exertion for about 3 years; his local doctor stated that he had a leaking valve; there was no history of rheumatism. The Veteran reported left chest pain both related to and unrelated to exertion, usually afterward, and he stated that his heart beat fast all the time. On physical examination, the impression was of organic heart disease, rheumatic type or congenital. It was recommended that the Veteran stop training and return for a final evaluation and disposition. He was re-examined one week later and the previous physical findings were confirmed. The final diagnosis was rheumatic heart disease, inactive, type unknown, with enlarged heart and mitral insufficiency; the line-of-duty determination was that the heart disease was not aggravated by reason of military service. It was recommended that the Veteran be separated from service as being unfit for general or even limited duty. On June 1953 Medical Board proceedings, it was found that the Veteran's heart disease originated in approximately 1949, was not incident to service, existed prior to entry on active duty, and was not permanently aggravated by active duty. The June 1953 service separation examination repeated the aforementioned final diagnosis and line-of-duty determination. On November 1958 VA examination, the Veteran reported being examined approximately one month after entering service with complaints of shortness of breath and chest discomfort. It was noted that he had a loud apical systolic murmur and he was discharged from service with the diagnosis of rheumatic mitral insufficiency. The Veteran stated that he knew about a murmur prior to entering service. He gave no history of rheumatic fever. He stated that he was not ill with shortness of breath or chest discomfort prior to entering service. The diagnosis was organic heart disease, class II. A December 1958 rating decision denied service connection for heart disability, based essentially on findings that the disability pre-existed service and was not aggravated in service. The rating decision noted no evidence of rheumatic fever during service and positive findings recorded within a short time after the Veteran entered active duty. The Veteran's treatment records show treatment for newly diagnosed congestive heart failure in February 1986. These records from U.C. Davis Medical Center also include findings of aortic valve and mitral valve thickening as well as mitral valve regurgitation. At that time, the Veteran also reported a history of rheumatic fever at age 5. On October 1989 treatment, the Veteran complained of dizziness upon standing, with near syncope, without vertigo, head trauma, chest pain, shortness of breath, or alcohol use. Symptomatic orthostatic hypertension, etiology unclear, was diagnosed. On March 1990 treatment, the Veteran's assessments included coronary artery disease, stable; there was no evidence of congestive heart failure. In December 1993 statements, the Veteran's brother stated that, to the best of his knowledge and recollection, the Veteran did not have any heart problems prior to joining the Army in 1953. The Veteran's mother stated that the Veteran had no history of heart disease when he entered service; a physical examination was performed, all tests were negative, and he was then accepted into the Army. The Veteran contended that his heart condition was brought on by the rigors of training and being issued a gas mask that leaked. A February 1994 rating decision denied service connection for heart disease, based essentially on findings that the STRs strongly support the conclusion previously reached by the Medical Board and VA: that rheumatic heart disease existed prior to service and was not aggravated by service. In June 1995 statements, the Veteran's friend P.Y. stated that he grew up with the Veteran; they used to play ball together and joined the service together. He stated that the Veteran was never sick and had no shortness of breath until he went into the Army and began basic training. He stated that the Veteran was unlucky and was given a leaking gas mask, after which he started going down. Another friend, R.W., stated that he had known the Veteran since they were children, and he had never known him to have a heart problem or shortness of breath, even when playing basketball in high school. In a June 1995 RO hearing, the Veteran testified that he had no health problems before entering service. He testified that, in training, he had to go to a gas chamber and was given a leaky gas mask, which allowed gas into his system and caused him to pass out, and he had been slowly worsening ever since that time. He testified that his father told him to say he had a history of three years of difficulty breathing on exertion, because he was trying to get the Veteran out of service. He testified that he sought treatment after service, including a two week hospital stay in 1957, although he did not remember if the treatment was for his heart. He testified that he went to the hospital a few times in 1970, and he had a major heart attack in 1972 and was treated by VA. He testified that he had another major heart attack in 1986. In a July 1995 statement, Dr. Hosoume stated that the Veteran was under his care for a history of congestive heart failure, which was currently stable. He noted the Veteran's report of a history of rheumatic heart disease diagnosed in 1953. Dr. Hosoume opined that the rheumatic heart disease could certainly contribute to the Veteran's development of heart failure diagnosed in 1986. In a February 1996 statement, the Veteran's mother stated that the Veteran did not have rheumatic fever at age 5 (as he had reported on medical treatment) or thereafter, and that she has another son who developed rheumatic fever between ages 5 and 7. A September 1997 Board decision (on appeal from the January 1995 rating decision) found that new and material evidence had not been submitted to reopen the claim of service connection for a heart disorder. In a November 1998 memorandum decision, the Court of Appeals for Veterans Claims (Court) vacated the Board decision and remanded the matter for readjudication based on new case law. In a March 1999 decision, the Board again found that new and material evidence had not been submitted to reopen the service connection claim for rheumatic heart disease. The Veteran did not appeal the March 1999 decision to the Court, and it became final. On March 2000 VA treatment, the Veteran reported smoking half a pack to one pack per day of tobacco x 47 years. On April 2000 VA treatment, the assessments included asthma/chronic obstructive pulmonary disease (COPD), hypertension, and status post two myocardial infarctions. In a January 2008 statement, Dr. Yeates noted that the Veteran had first seen him that day and asked him to write a letter with respect to the Veteran's heart disease (including two previous heart attacks) as well as an incident in basic training while in service in which a faulty gas mask resulted in hospitalization for three days. Dr. Yeates opined that this incident may or may not have contributed to the Veteran's heart problems. Dr. Yeates further opined that the Veteran's smoking history, high cholesterol and hypertension most likely have contributed to his heart problems as well. The Veteran then submitted a private medical opinion which was to the effect that it is more likely than not that the Veteran's heart trouble was aggravated by his military induction training. This provider further opined that the Veteran's exposure to mustard gas training is more likely than not to be the cause of his heart and lungs conditions. In March 2013, the Board reopened the Veteran's claim of service connection for rheumatic heart disease and remanded the matter for further medical development. On April 2013 VA examination, the examiner noted the Veteran's reported history of having shortness of breath for three years prior to entering service, according to a report dated 1958; he was also told at that time he had a heart murmur, although an ECG was normal. The Veteran had a myocardial infarction in 1972 and was hospitalized for about two weeks, after which he returned to construction work. He had a second heart attack in 1986 and was again hospitalized for two weeks. The Veteran did not recall ever being told that he had rheumatic or hypertensive heart disease. He reported having no chest pains since the last heart attack in 1986. He reported that he had smoked for 47 years and had severe COPD. The examiner noted the Veteran's focus on gas training in service and his contention that his respirator had a hole in it, which caused him to pass out and require medical attention; the examiner noted that none of this is recorded in the Veteran's three months of duty records. The Veteran alleged that this exposure caused his heart disease. The April 2013 VA examiner opined that the etiology of the Veteran's two myocardial infarctions was coronary atherosclerosis. There were no findings of congestive heart failure or cardiac arrhythmia. A history of mitral valve insufficiency was noted. A May 2010 EKG showed evidence of cardiac hypertrophy, and a March 2011 EKG showed arrhythmia (occasional paroxysmal ventricular contractions) and hypertrophy (left ventricular hypertrophy). A February 2013 chest X-ray showed diffuse lung changes compatible with tobacco-related lung disease, and a May 2010 echocardiogram showed akinesis. Following a physical examination, the examiner noted that the Veteran had a heart murmur for three years prior to service. The examiner opined that several military doctors suggested rheumatic heart disease without any corroboratory evidence such as a history of rheumatic fever. The examiner opined that the murmur did not progress during the Veteran's service experience of three months, and no diagnostic studies were done; there is no evidence of progressive mitral disease during his three month tour of service. The examiner noted that a recent echocardiogram did confirm a severe degree of mitral insufficiency with a stenotic valve, which is consistent with rheumatic valvular heart disease. However, the examiner noted that at age 80, or 60 years post service, the Veteran is still functioning. The examiner opined that it is therefore less likely than not that the Veteran's 3 months of service had any effect on his mitral murmur of 63 years duration (present 3 years prior to service and 60 years post service), hence it is less likely than not that he had heart disease prior to service. In August 2013, the Board sought a VHA advisory medical opinion for clarification, noting that the April 2013 VA examiner appears to question the medical conclusions made by the military medical personnel as to rheumatic heart disease. The Board also noted that the VA examiner appears to suggest that only a murmur was detected during service. In an October 2013 VHA opinion, the reviewing cardiologist identified the Veteran's cardiac disorders diagnosed in service as enlarged heart and mitral insufficiency (leaky heart valve) at discharge, and valvular heart disease was indicated on May 1953 physical examination; it was noted that whether the diagnosed valvular heart disease was due to rheumatic fever is not certain. The reviewing cardiologist noted two discrepant pieces of information: the Veteran indicated that he had rheumatic fever at age 5 and that he had shortness of breath on exertion for 3 years as of 1953; and the January 1953 preinduction physical examination included a normal heart examination, whereas the June 1953 predischarge examination indicated abnormalities of rheumatic heart disease, inactive, with enlarged heart and mitral insufficiency, and the heart examination was indicated as abnormal. The reviewing cardiologist stated that if the Veteran's statements are correct, then it is likely that the valvular heart condition preexisted prior to service; however, if the military preinduction and predischarge examinations are viewed side by side, there was a clear change in the Veteran's heart condition, strongly suggesting that the heart condition either occurred in or was exacerbated during active duty. The reviewing cardiologist suggested that a determination that could reconcile the two discrepant pieces of information would be that the Veteran did have preexisting valvular heart disease prior to entry to service, and the preexisting valvular heart disease was exacerbated (increased in severity) during active service, in which case it would be more likely than not that an increase in severity (exacerbation) of the heart condition occurred during service. Finally, the reviewing cardiologist noted that valvular heart disease was discovered and documented on predischarge examinations in May 1953, and the Veteran indicated a prior history of rheumatic fever and shortness of breath on exertion for 3 years (prior to and including the short period of active service), suggesting a preexisting condition; thus if the Veteran's statements are taken for face value, it would be more likely than not that the heart condition could have preexisted prior to service. The Board has considered the April 2013 VA medical opinion and finds the opinion to be detailed and supported by sufficient rationale. However, the Board's legal analysis is governed by applicable laws and regulations which require somewhat different conclusions than arrived at by the VA examiner. To begin with, since no heart disability was noted at the time of entrance examination, the presumption of soundness arises and may only be overcome by clear and unmistakable evidence that the disorder both preexisted service and was not aggravated by service. The examiner's finding that it was aggravated by service prevents a finding that there is clear and unmistakable evidence that it was not aggravated by service. This conclusion is also supported by the October 2013 VHA medical advisory opinion. Thus, the presumption of soundness must stand. After reviewing the examiner's and reviewing physician's opinions, the Board finds that they reasonably support a finding that the valvular heart disease was present during service. Since by law the Veteran is presumed sound at entry, the Board must conclude that service connection is warranted for valvular heart disease on a direct service connection basis; that is, that it was manifested during service. ORDER Service connection is warranted for valvular heart disease. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs