Citation Nr: 1801774 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 15-35 221A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for arteriosclerotic cardiovascular disease. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse (D.D.) and father (R.D.) ATTORNEY FOR THE BOARD Michael Sanford, Counsel INTRODUCTION The Veteran had active duty service from September 1986 to November 1986, and from August 1990 to August 1992. This appeal to the Board of Veterans' Appeals (Board) arose from an April 2015 rating decision in which the RO denied the Veteran's claim for service connection for heart problems with blockage. In July 2015, the Veteran filed a notice of disagreement (NOD). In September 2015, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2015. In December 2017, the Veteran, his spouse and father testified during a Board video-conference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing has been associated with the claims file. While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the Veterans Benefits Management System (VBMS), a paperless, electronic claims processing system. The Board notes that, in addition to the VBMS file, the Veteran has a separate, paperless, electronic Virtual VA (now, Legacy Content Manager) file. All such records have been reviewed. Also, this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2)(C) (2012) and 38 C.F.R. § 20.900(c) (2017). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished. 2. Although no heart disability was diagnosed during service or shortly thereafter a cardiac abnormality was noted during the Veteran's second period of active service, and competent, probative evidence collectively indicates that the Veteran's current arteriosclerotic cardiovascular disease as likely as not had its onset in service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veterans favor, the criteria for service connection for arteriosclerotic cardiovascular disease are met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION At the outset, the Board notes that, in connection with the current claim, VA has satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000. See 38 U.S.C.A. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of this matter, given the fully favorable nature of the Board's decision. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). Service connection may 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). Generally, establishing direct service connection requires medical or, in certain circumstances, lay 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 present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether the elements are met is based on an analysis of all pertinent evidence of record and the evaluation of its competency, credibility, and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Initially, the Bord notes that, in connection with the current claim, the Veteran has contended that his disability is related to purported exposures during the Persian Gulf War. However, the Board must consider the claim under any viable theory of entitlement-to include whether the disability had its onset in service-apart from any purported exposures. Cf. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Considering the pertinent evidence in light of the governing legal authority, and resolving all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board finds that service connection for arteriosclerotic cardiovascular disease, is warranted. As regards the first element of service connection, current disability, it is uncontroverted that the Veteran has been diagnosed with arteriosclerotic cardiovascular disease. Indeed, that diagnosis was confirmed at the Veteran's April 2015 VA examination. As for the second element of service connection, in-service disease or injury, service treatment records (STRs) associated with the claims file reflect that upon entrance to his second period of service, the Veteran was examined in April 1990. His heart was evaluated as clinically normal, and in the report of medical history completed by the Veteran, he noted no heart problems and stated "I am in good health." However, shortly before separation, the Veteran underwent an echocardiogram (ECG) in July 1992. The results of the ECG were interpreted as abnormal, and showing marked sinus bradycardia. At separation in August 1992, the report of medical examination notes a clinically normal heart; however, marked sinus bradycardia was also noted. The remaining question, then, is whether there exists a medical relationship between the arteriosclerotic cardiovascular disease diagnosed after discharge and the Veteran's service, to include the cardiac abnormality noted therein. On this point, the Veteran has provided three statements from private cardiologists. In a December 2017 statement, T.J., M.D., at Northwestern Medicine indicated that the Veteran's disability is unexplained by the Veteran's own characteristics and raises the question of promotion by the Veteran's military service. Dr. T.J. stated that he consulted with other cardiologists and reviewed the Veteran's in-service abnormal ECG. He explained that given the abnormal ECG, there is a good likelihood (over 75 percent) that the Veteran's disability is related to service. Another letter dated in December 2017 is from J.J.S., M.D. He explained that the Veteran had an abnormal ECG during service and that reflects that he had some sort of injury or inflammation at that time. The Veteran also provided a December 2017 statement from B.E.L., M.D. Dr. B.E.L. expressed that the Veteran's July 1992 abnormal ECG was a marker for cardiac disease, which he was not made aware of. In this instance, the Board finds that the private statements, taken together, constitute probative evidence indicating that the Veteran's arteriosclerotic cardiovascular disease as likely as not had its onset in service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Each statement reflects consideration of the abnormal ECG during service, and each doctor offered some cogent comment on its significance, to include in the development of heart disease. Dr. T.J. commented that the abnormal ECG provides strong evidence that the Veteran's arteriosclerotic cardiovascular disease has a relationship to service. Also, Dr. J.J.S. indicated that the abnormal ECG reflected the fact that the Veteran had injury or inflammation at that time. Further, Dr. B.E.L. explained that the abnormal ECG was actually a marker for cardiac disease, with which the Veteran ultimately has been diagnosed. Taken together, the private statements indicate, at the very least, that there is as likely as not a relationship between the cardiac abnormality noted in service and the Veteran's current arteriosclerotic cardiovascular disease, and, thus, suggest an in-service onset for the disability. Significantly, there is no competent, probative evidence or opinion of record weighing against an in-service onset for the Veteran's heart disease. The Board acknowledges that the record also includes an opinion by an April 2015 VA examiner that it is less likely as not that the Veteran's disability is proximately due to environmental hazards experienced during his military service, and that there is no medical evidence that list any Gulf War environmental hazards as a cause of coronary artery disease (CAD). The Board emphasizes, however, that opinion solely discusses whether the Veteran's disability is related to purported exposures during the Persian Gulf War; the opinion provider did not consider and discuss the abnormal ECG during service as potential evidence that the Veteran's disability had its onset in service. Simply stated, the April 2015 VA examiner's opinion does not actually counter the probative private statements addressing the matter of whether the Veteran's disability had its onset in service. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C. § 5107(b); Gilbert, supra. Given the totality of the evidence in this case, to include the competent medical evidence discussed above, and with resolution of all reasonable doubt on certain elements of the claim in the Veteran's favor, the Board finds that service connection for arteriosclerotic cardiovascular disease is warranted. ORDER Service connection for arteriosclerotic cardiovascular disease is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs