Citation Nr: 1800901 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 12-22 746 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a heart disability, to include atrial septic defect status post-surgical repair, ischemic heart disease, and coronary atherosclerosis without stenosis. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from October 1979 to October 1982, from January 1990 to June 1990, from November 1990 to June 1991, from October 2001 to May 2002, from January 2003 to August 2004, from January 2005 to December 2005, and from July 2006 to September 2007. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2014 and March 2016, the Board remanded the issue on appeal to the RO for additional development. Additional evidence in the form of VA medical records was received subsequent to the most recent supplemental statement of the case issued in November 2016. As the evidence is not pertinent to the claim on appeal, a remand for RO consideration of the evidence is not necessary. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. The Veteran's congenital patent foramen ovale is a congenital defect without a superimposed heart condition. 2. The Veteran's coronary artery disease did not have its onset during service and is not secondary to a service-connected disability. CONCLUSION OF LAW The criteria to establish service connection for a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran is seeking service connection for a heart condition. He contends that a heart condition is directly due to service or is secondary to a service-connected disability. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A. Applicable Law Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c); Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). Congenital defects, however, can be subject to superimposed disease or injury and if, during an individual's military service, superimposed disease or injury does occur, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90 (July 18, 1990). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. B. Discussion In this case, service connection is denied as the preponderance of the evidence is against a finding that a heart condition was incurred in service or is secondary to a service-connected disability. The basic facts of this case are not in dispute. First, the Veteran is currently diagnosed with congenital patent foramen ovale (PFO) status post (s/p) closure device placement and coronary artery disease (CAD). Next, the Veteran's medical history includes treatment for a transient ischemic attack (TIA) during service in Kuwait in December 2006. During the work-up for the TIA, an echocardiogram showed no abnormality. He underwent a further work-up after service for the TIA, including a transesophageal echocardiogram in November 2007, which revealed the PFO. He underwent elective closure of the symptomatic PFO in May 2008. Nearly one year later, in April 2009, the Veteran was admitted for symptoms of chest pain. It was noted at that time that he had a history of CAD, although a catheterization conducted during that hospitalization did not reveal CAD. A cardiologist interpreting the report in May 2009 noted "normal coronary arteries." The first confirmed diagnosis of CAD appears at the time of a May 2012 VA cardiac catheterization. It also appears that the Veteran underwent a coronary stent placement in 2009, although those records are not available for review. Finally, the Veteran has a history of hyperchlosteremia as notated in a July 1998 service retention examination. His cardiologist in May 2009 also noted a history of dyslipidemia. Finally, as it pertains to his secondary theory of entitlement, the Veteran is service connected, as relevant, for posttraumatic stress disorder (PTSD). On the basis of these facts, the medical questions at issue in this case are whether his PFO is a congenital defect or disease, and whether his CAD first manifested during service or is secondary to an already service-connected disability. To address these questions, the Board referred the matter to the Veterans Health Administration (VHA) for an expert opinion by a cardiologist. The cardiologist reviewed the matter in July 2017. With regard to the first question, the cardiologist explained that, by definition, PFOs are congenital defects and not diseases. The cardiologist noted that it is not an uncommon congenital defect occurring in about 25 percent of the general population. The Board finds that this opinion is determinative. First, the Board informed the VHA cardiologist of the VA definitions of congenital defects and diseases, so it is clear that the cardiologist understood the difference. The VA examiner's opinion then specifically and unequivocally defined the condition as a congenital defect. Because, as established by the VA cardiologist's opinion, the PFO is a congenital defect, service connection cannot be granted for this condition. See 38 C.F.R. § 3.303(c). There is no indication that a current heart condition is a superimposed disease. A VA examiner in October 2016 explained that the Veteran had a TIA, which was a complication of the PFO. The Veteran is currently service-connected for the TIA, and that issue is not included within the scope of this appeal. Aside from the TIA, there is no indication that a heart condition is a superimposed disease on the PFO. With regard to whether any of the remaining heart conditions had its initial onset during service, the Veteran's service treatment records (STRs) contain no obvious indication of heart disease. As indicated, he had a TIA (stroke) during service in December 2006. The PFO was also noted. However, no heart diagnosis was made during service. There still remains the question of whether a heart condition was present, but undiagnosed during service. The Board directed this question to the July 2017 VHA cardiologist, who concluded that the Veteran's last active duty ended in September 2007 and, "[p]er the chart review from an office visit on May 15, 2009, it was reported that the Veteran had a left heart catheterization (LHC) on April 27, 2009 which was reported as normal heart function and normal coronary arteriography." The cardiologist explained that "LHCs are considered the 'gold standard' for the diagnosing of CAD, thus it would appear highly unlikely that his CAD was undiagnosed in 2009." The cardiologist then noted that the Veteran had a LHC in April of 2012 with non-obstructive CAD followed by a cardiac stent placement in 2013. The cardiologist then summarized that "his active duty ended in September 2007 and no CAD reported in 2009," and "[i]t was not until 2012 that CAD was reported, thus unlikely that CAD manifested within one year of his service separation." Furthermore, according to the VHA cardiologist, the Veteran "does have traditional risk factors for CAD this being male, dyslipidemia and hypertension reported. These risk factors most likely are the cause for his CAD." The Board again finds that this VHA cardiologist's July 2017 opinion is determinative. The opinion is clear and unequivocal, and it was based on the relevant information, including the relevant in-service and post-service information. Moreover, the examiner's explanation is understandable, and all inferences appear to follow from the facts and information given. See Monzingo, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Of note, the VHA cardiologist commented that "I have no records of the LHCs." In context, it is clear that the cardiologist is referring to the LHCs conducted at the time of a 2013 cardiac stent replacement. The Board had noted the absence of these records in its letter to the VHA cardiologist. The absence of these records is, at this time, nondeterminative. First, it appears that all procurable records have been obtained. Thus, this is not a situation where a remand under VA's duty-to-assist to attempt would aid in attempting to obtain the records. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(d). Second, the VHA cardiologist did not indicate that he needed to see the LHC records. Thus, the probative value of this opinion is not materially reduced by the cardiologist's comment that he did not have the LHC reports from the time of the 2013 cardiac stent replacement. See, e.g., Jones v. Shinseki, 23 Vet. App. 382, 390 (2010); Nieves-Rodriguez, 22 Vet. App. at 304. Because the VHA cardiologist found that the Veteran's heart condition could not have started during service in light of the negative LHC in April 2009, the most probative evidence weighs against a finding that there was a direct in-service onset. Correspondingly, a nexus on the basis of chronicity or continuity is not supported because, by inference, the VHA cardiologist's opinion affirmatively establishes a nondiagnosis in April 2009, which was more than one year after the Veteran's separation from service in September 2007. See 38 C.F.R. §§ 3.303(b), 3.307(a). Lastly, the weight of the most probative evidence weighs against a nexus to an already service-connected disability. The VHA cardiologist in July 2017 also addressed this question. He concluded that "whether PTSD is a risk factor or an aggravating condition continues to be under clinical investigation, so it is speculative at this time." Congress has not mandated that a medical principle have reached the level of scientific consensus to support a claim for VA benefits. Congress, through § 5107(b)'s low standard of proof for all issues material to a claim for veterans benefits, has authorized VA to resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in "approximate balance." See Wise v. Shinseki¸ 26 Vet. App. 517, 531-32 (2014). In turn, the Board, when evaluating that evidence, cannot demand a level of acceptance in the scientific community greater than the level of proof required by the benefit of the doubt rule. See id. at 532. Therefore, the Board cannot reject potentially favorable medical literature of record because it espouses a medical principle that is not yet "generally accepted" in the scientific community. See id. at 531. However, the Board is not precluded from considering the extent to which a scientific theory is accepted in the scientific community when evaluating the evidence of record. Id. at 532. Of particular relevance to an analysis of medical evidence supporting a nexus are factors such as whether a medical professional finds studies persuasive, whether there are other risk factors that might be the cause of the condition for which benefits are sought, and whether the condition has manifested itself in an unusual manner. Polovick v. Shinseki, 23 Vet. App. 48, 53 (2009). In fact, a VA examiner is expected to give some assessment of probability, as opposed to a definitive statement of the cause of the disabilities. As long as the examiner is able to state that a link between a disability and an in-service injury or disease is "less likely than not," or "at least as likely as not," he or she can and should give that opinion; there is no need to eliminate all lesser probabilities or ascertain greater probabilities. See Jones, 23 Vet. App. at 391. Here, the VHA cardiologist found that there is only a "speculative" basis to relate PTSD to a heart condition. In the context of the opinion, it is clear that the cardiologist was requiring a medically acceptable basis for establishing a nexus to PTSD. The Board can find no compelling indication that this examiner was demanding a degree of medical certainty greater than is consistent with VA's standard of proof in this appeal. To the contrary, the cardiologist was simply giving his opinion as to the persuasiveness of the clinical evidence. Polovick, 23 Vet. App. at 53. This is entirely within his area of expertise, and the Board does not have the competence to dispute this VHA cardiologist's interpretation of the clinical research in this area. See Monzingo, 26 Vet. App. at 105-06; Fountain v. McDonald, 27 Vet. App. 258 (2015). Thus, overall, the VA expert's opinion on the secondary question is considered probative on this question. In short, the Board finds that the VHA cardiologist's opinion is the most probative evidence of record in this case on all medical questions at issue. The Veteran previously underwent VA examinations in October 2008, February 2015, and April 2016 (with an October 2016 addendum). These opinions, which were all negative on the direct and secondary theories, are of reduced probative weight. For example, the October 2008 VA examiner did not address CAD, and the remaining two VA examiners did not address whether the Veteran's CAD was present but undiagnosed during service or within one year of service. Nonetheless, these VA examinations, where not deficient, provide further evidence weighing against a nexus to service. See Nieves-Rodriguez, 22 Vet. App. at 304. To the extent the Veteran asserts that a heart condition is due to service or secondary to a service-connected disability, these questions are not ones capable of lay observation, within the common knowledge of a lay person, or otherwise within the competence of a non-medical expert. As demonstrated by the need to obtain multiple medical opinions, including an expert VHA opinion, the medical questions at issue here require medical expertise to consider the nature of the Veteran's in-service conditions; his post-service symptomatology; and the medical significance of these factors in the context of his current diagnoses. See Fountain, 27 Vet. App. at 274-75; Monzingo, 26 Vet. App. at 106. Thus, his statements cannot constitute competent evidence tending to increase the likelihood of a nexus to service or PTSD. See Fountain, 27 Vet. App. at 274-75. In conclusion, the weight of the most competent evidence establishes that (1) the Veteran's PFO is a congenital defect without a superimposed cardiology condition, and (2) the current diagnosis of CAD is unlikely to have resulted directly from service or secondary to the service-connected PTSD. Thus, the evidence is not in equipoise on the nexus requirement, which is the central question of fact in dispute in this case. For this reason, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Therefore service connection for a heart disability is not warranted. ORDER Service connection for a heart disability, to include atrial septic defect status post-surgical repair, ischemic heart disease, and coronary atherosclerosis without stenosis, is denied. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs