Citation Nr: 1642685 Decision Date: 11/07/16 Archive Date: 11/18/16 DOCKET NO. 10-18 543 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cardiomyopathy, also claimed as congestive heart failure, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Miller, Associate Counsel INTRODUCTION The Veteran had active duty for training from January 1979 to August 1979 and on active duty from January 1980 to September 2002. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from an August 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a February 2012 Travel Board hearing before a Veterans Law Judge. A transcript of those proceedings is associated with the Veteran's record. In February 2013, the claim was remanded for additional development. The claim has since returned to the Board for further consideration. In August 2016, the Veteran was notified that the Veterans Law Judge who conducted his February 2012 hearing is no longer employed by the Board. He was offered a chance to have another hearing. In October 2016, the Veteran informed the Board that he did not wish to appear at another Board hearing and requested that his claim be considered based on the evidence of record. In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless claims files associated with the Veteran's claims. FINDING OF FACT The evidence indicates that it is at least as likely as not that the Veteran's cardiomyopathy, also claimed as congestive heart failure, is causally related to his service-connected obstructive sleep apnea. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran's favor, the criteria for service connection for cardiomyopathy, also claimed as congestive heart failure, to include as secondary to a service-connected disability, have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist a claimant in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). The VCAA applies in the instant case. However, the Board's grant of service connection for cardiomyopathy herein represents a complete grant of the benefit sought on appeal. Thus, no further discussion of VA's duty to notify and assist is necessary. Legal Principles Under VA law, service connection may be established for disability resulting from injury sustained or disease contracted during active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014). 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) (2015). To prove service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As relevant in this particular case, under 38 C.F.R. § 3.303(c), congenital or developmental abnormalities are not considered "diseases or injuries" within the meaning of applicable legislation governing the awards of compensation benefits, and so, do not constitute a disability for VA compensation purposes. The key distinction to be made when there is for consideration for service connection an alleged congenital disorder, is whether it constitutes a congenital "defect" or "disease." A congenital disease is progressive in nature and hence capable of improving or deteriorating, whereas a congenital defect is more or less static in nature. See VAOPGCPREC 82-90. See also, O'Bryan v. McDonald, 771 F.3d 1376, 1380-81 (Fed. Cir. 2014). VA's presumption of soundness upon entering active service applies to congenital disease. It follows that service connection may be granted for a congenital disease incurred in or aggravated by active service. See generally, Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The presumption of soundness may still be rebutted by clear and unmistakable evidence that the condition pre-existed active service, and was not aggravated therein. See 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03. Also, applicable law further provides for secondary service connection. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a Veteran is entitled to service connection on a secondary basis when it is shown that a service-connected disability has permanently aggravated a nonservice-connected disability. See 38 C.F.R. § 3.310(b). Analysis The Veteran appeals the denial of entitlement to service connection for cardiomyopathy. He contends that this condition manifested in service and/or is secondary to his service-connected disabilities, including obstructive sleep apnea. The Board observes that the Veteran is currently is diagnosed as having dilated cardiomyopathy. The condition has been alternately identified as "familial dilated cardiomyopathy" (March 2013 VA medical opinion) and "non-ischemic dilated cardiomyopathy" (private cardiologist, Dr. Henderson January 2013; Dr. Omar, another cardiologist, December 2006). As to relevant factual background, the Veteran had intermittent unexplained chest pain periodically during his military service, and there was an x-ray report dated in April 1997 which indicated there was cardiac enlargement. Chest pain was reported on his separation examination in 2002. Following discharge from service, the condition of cardiomyopathy was formally diagnosed as of 2005. The July 2005 report of Dr. S. Wing indicated a new diagnosis of dilated cardiomyopathy, this, found after the Veteran presented after an abnormal EKG on a work physical. There was no prior history of any cardiac problems. He admitted to having some substernal chest tightness for the past one to two months, which did not seem to be exertional in nature. Several times a week for the last one to two months he had awakened feeling short of breath and had to walk around the house in order to catch his breath. The Veteran reported congestive heart failure in his family history. Further testing confirmed a severe dilated cardiomyopathy with an ejection fraction of 25 percent. An August 2005 report from the University of South Alabama Medical Center, denotes one-day hospitalization for dilated cardiomyopathy, with hypotension and acute renal insufficiency. The same records also indicate the Veteran had experienced chest pain retrosternal, non-exertional for years. Thereafter, more recent private treatment records as cited above document his ongoing treatment. On September 2009 VA examination, the examiner indicated the opinion that the Veteran's dilated cardiomyopathy was less likely as not caused by or a result of his military service. The stated rationale, was as follows: [The] claims file was carefully reviewed. The Veteran had [complaints of] chest pain in Oct, 1995 with a normal EKG. He was sent home with Zantac and SL Nitro. He was seen again in Nov, 1995 for [follow up] of chest pain. Dr. Brewer wrote "symptoms improved with zantac and needed no nitro." There was a question of an enlarged heart on the [chest x-ray] in Oct, 1995. He had a similar question in 1997. An echo[cardiogram] was done in May, 1997 which came back normal with a normal ejection fraction. It is not uncommon that the heart will look slightly enlarged on a chest x-ray in an obese person. Obstructive sleep apnea is a risk factor for CHF. Sleep disturbances, including obstructive and nonobstructive sleep apnea, can contribute to the impairment of left ventricular dysfunction. [Internet article citation intentionally omitted] However, in this Veteran's case, familial dilated cardiomyopathy is more likely the reason behind his heart condition. The Veteran has a strong family history of CHF. His father died of CHF and had a [history of] "early heart disease." [The Veteran] also had a sister who died at age 46 due to CHF. One of the causes of dilated cardiomyopathy is familial dilated cardiomyopathy. Among patients with idiopathic DCM, it is estimated that at least 25 percent have familial disease. No clinical or histologic criteria, other than family history and careful examination of relatives (including those who are asymptomatic), have been derived to distinguish familial from nonfamilial disease. Pursuant to a February 2013 Board remand, a supplemental VA medical opinion was obtained later that month, intended to more clearly address the etiology of cardiomyopathy, including whether aggravated in service. Also requested by the Board was opinion as to whether cardiomyopathy developed secondarily to now service-connected sleep apnea. The opinion obtained indicated: The most common causes of intrinsic cardiomyopathy are; long-standing drug and alcohol toxicity (apparently not an issue in this case), certain infections, including hepatitis C (also not a consideration in this case), and genetic/familial and idiopathic (i.e., unknown etiology - also the most common cause at 50 percent). Among patients with idiopathic dilated cardiomyopathy, it is estimated that 25 to 35 percent have familial disease. Of note, the Veteran's father had a history of "early heart disease" and subsequently died of congestive heart failure, and the Veteran had a sister who also died at age 46 of congestive heart failure. When the Veteran's family history is taken into consideration, the most likely reason for the Veteran's dilated cardiomyopathy is familial dilated cardiomyopathy. This is consistent with the literature values noted above. As to the question of whether the Veteran's cardiomyopathy is of congenital, developmental, or familial origin, it is at least as likely as not of familial origin. As to the question of whether or not the Veteran's cardiomyopathy is a disease or defect, the entity "familial dilated cardiomyopathy" is a disease process, which is at least as likely as not caused by a genetic defect. In any event, the Veteran's dilated cardiomyopathy is a stand-alone entity, neither due to nor aggravated by his active military service or any treatments that he received during active military service. In a March 2013 statement, the Veteran reported that he was taking Vioxx in service "which has been proven to be a possible cause of DCM." He also clarified that nobody on his mother's side of the family died of heart disease and that only his father and uncle had heart problems on his father's side of the family. His father had a series of strokes and heart attacks in his fifties caused by alcoholism and decades of heavy smoking. His uncle had a stroke caused by very heavy smoking and high cholesterol and had a heart attack after he was taken off cholesterol medication. He has not had heart symptoms since. He also indicated that he at one time thought that his grandfather and a half-sister had heart problems but has learned that they had other, non-genetic, conditions caused by environment and behavior. In view of the conflicting findings shown above, the Board sought an outside medical expert opinion (OME) through the Veterans Health Administration. In July 2016, a board-certified cardiologist found, among other things, that there was "insufficient evidence to describe [the Veteran's] dilated cardiomyopathy as a congenital/developmental defect or disease." The OME also stated that there is insufficient evidence to suggest that this condition pre-dated the Veteran's period of active duty beginning in 1979. The OME then stated that it is "entirely possible that [the Veteran's] period of active service aggravated or affected the development of the condition." The OME reported that there is a reasonable likelihood that during the Veteran's very long period of service that he developed dilated cardiomyopathy. The OME noted that it was "concerning" that the Veteran complained of chest and heart pain from 1995 through 2002. The OME also noted that the Veteran never underwent a cardiac stress evaluation, and it was possible that such an evaluation may have revealed the Veteran's condition prior to his discharge. Most importantly, the OME found that there "is reason to believe that [the Veteran's] sleep apnea may have affected his cardiac/heart failure status" and that "sleep apnea is a known exacerbant for dilated cardiomyopathy." The OME explained that although the Veteran was diagnosed with service-connected sleep apnea in 2002, "it seems that the diagnosis could have been made sooner with screening or appropriate patient interest. Furthermore, [the Veteran] had marked weight gain, going from 186lbs in the 1980's to 228lbs in 2002, and then 265lbs in 2003. This type of weight gain can markedly aggravate sleep apnea." The Veteran has also submitted a September 2016 clinical note from his treating cardiologist. His cardiologist reported "while it is possible about 20% likelihood that [the Veteran] has genetic DCM there is an 80% chance he does not and more likely than not he has idiopathic cardiomyopathy made worse by [obstructive sleep apnea]." The Board finds that the July 2016 OME opinion carries the most probative value regarding the question of whether the Veteran's dilated cardiomyopathy is caused or aggravated by service. The factual details discussed in the OME's opinion demonstrated that she was fully informed of the Veteran's medical history, and her opinion was thoroughly articulated and supported by a reasoned analysis. Not only did the OME recite the pertinent facts, but she also synthesized the Veteran's medical history and supported her opinion with specific examples from the record. As demonstrated above, the evidence reflects that there have been distinct differences of opinion as to whether the Veteran's dilated cardiomyopathy is related to service or a service-connected disability. The Board finds, however, that with the conclusions most recently posited by the July 2016 OME, the evidence is at least in equipoise to the extent that the benefit of the doubt may be resolved in the Veteran's favor. The Board thus finds that service connection is warranted for cardiomyopathy based on aggravation by service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As such, the criteria for service connection are met and the claim is granted. ORDER Entitlement to service connection for cardiomyopathy, also claimed as congestive heart failure, to include as secondary to a service-connected disability, is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs