Citation Nr: 1801861 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 13-31 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for a heart disability. 2. Entitlement to service connection for cardiac arrhythmia. 3. Entitlement to service connection for a heart disability other than cardiac arrhythmia. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 to December 1984, from February 1986 to February 1987, from January 1989 to August 1990, from July 1995 to December 1995, from July 1999 to September 1999, from May 2000 to May 2001, and from April 2003 to September 2003. He also served periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This appeal is before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge via videoconference. A transcript is included in the claims file. In December 2016, the Board remanded the Veteran's appeal with instruction to obtain an opinion from a VA examiner regarding the etiology of his current heart disability. An opinion was provided by a VA examiner in February 2017. The Board is therefore satisfied that the instructions in its remand of December 2016 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes in an October 2014 substantive appeal, the Veteran separately appealed the issue of entitlement to compensation under 38 U.S.C. § 1151 for a hernia condition. The Veteran requested a hearing before the Board to take place in Atlanta, Georgia. However, the RO scheduled a hearing before an RO official, but it appears from a notation in VACOLS that this hearing was cancelled. The appeal has not yet been certified to the Board. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. Evidence associated with the claims file subsequent to a September 2000 final rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. 2. Cardiac arrhythmia arose in service. 3. A current heart disability other than cardiac arrhythmia is not related to service. CONCLUSIONS OF LAW 1. Evidence received since a final September 2000 rating decision is new and material; therefore, the Veteran's claim of entitlement to service connection for a heart disability is reopened. 38 U.S.C. §§ 5108, 7105(c) (2012); 38 C.F.R. §§ 3.156(a), 20.1103 (2017). 2. The criteria for service connection for cardia arrhythmia have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a heart disability other than cardiac arrhythmia have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). There is thus no prejudice to the Veteran in deciding this appeal. Merits The Veteran claims service connection for a heart disability, which was originally denied in a September 2000 rating decision. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or, a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service connection for an irregular heartbeat due to the anthrax vaccination was denied in a September 2000 rating decision based on a finding of no current chronic disability. The Veteran neither appealed this decision nor submitted new and material evidence within the one year of receiving notice. The decision therefore became final. Evidence submitted since the September 2000 decision includes a May 2011 letter from his VA treating physician, which states that his current atrial tachycardia may be attributed to his in-service symptoms following the vaccination. The Board finds that this evidence relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. The claim is therefore reopened, and the Board will now address the merits. Service treatment records reflect that in August 1999 the Veteran reported a reaction to receiving the first three shots of the anthrax vaccine. He stated that he had 20 minutes of chest pain within 2 hours of the first shot in July 1999 and palpitations within a day of the second shot. He reported feeling fine one week prior to the third shot, but reported more palpitations and fatigue after the shot. One week later he had a normal echocardiogram study, and his physician suggested that he decrease his caffeine intake. He was diagnosed with palpitations and his physician felt that the palpations were unrelated to the vaccine. He continued to report palpitations in September 1999 and underwent additional testing, all within normal limits. At a consultation a cardiologist found no evidence of a cardiac abnormality, but it was recommended that he not receive the remaining shots of the anthrax vaccine due to a possible correlation with his symptoms. In November 1999 he reported that he began having problems with his general health since receiving anthrax injections, including heart palpitations. His physician stated that the history of palpitations was most likely due to the vaccine. An April 2000 heart ultrasound showed mild mitral regurgitation and a calcified aortic annulus. A December 2000 chest x-ray showed a normal heart. VA treatment records reflect that in March 2000 the Veteran gave a history of a "slight heart murmur," reporting that he had been told to consult a cardiologist as soon as possible. In November 2002 he reported palpitations for the past 3-4 days. An electrocardiogram (ECG) showed a normal sinus rhythm, but as the Veteran is a paramedic he brought results with him that showed occasional premature ventricular contractions (PVCs). He was diagnosed with isolated PVCs of unknown significance. Private treatment records reflect that in February 2004 the Veteran reported heart palpitations. Specifically, he reported that while driving he began to black out, and when he pulled over his heart was pounding very hard and very fast. An ECG was normal. The Veteran was instructed to return if the symptoms recurred. VA treatment records reflect that in October 2006 the Veteran reported that in 1999 he received the anthrax vaccination and the "world got dark." He stated that it caused premature atrial contractions, though a cardiac workup at the time was negative. In a November 2008 statement, the Veteran reported that he had to be taken to the hospital emergency room following a cardiac event in February 2004. He stated that prior to the arrival of the ambulance, he had an event where he went into supraventricular tachycardia and became unstable. He stated that this demonstrates a serious chronic problem originating with the anthrax vaccine. VA treatment records include a March 2009 CT-scan conducted as part of the Veteran's unrelated cancer treatment. The CT scan noted a small amount of coronary atherosclerosis. His physician recommended more aggressive management of cholesterol levels with medication if improvement could not be attained through diet. The Veteran underwent a VA examination in September 2009. He reported being diagnosed with irregular heartbeat in September 1999. He stated that his symptoms began after his third anthrax vaccine injection. He reported intermittent symptoms as often as 4 times per month. Diagnostic tests were normal. He was diagnosed with cardiac arrhythmia based on subjective factors of fatigue and reported irregular heartbeat episodes. The Veteran underwent another VA examination in May 2010. He reported cardiac arrhythmia with onset in September 1999. He reported intermittent symptoms as often as 2 times per month. Examination and diagnostic tests were within normal limits. He was diagnosed with cardiac arrhythmia based on subjective factors of fatigue and reported irregular heartbeat episodes. Private treatment records reflect that in July 2010 the Veteran reported to the emergency room having experienced a transient ischemic attack. A CT scan ruled out a stroke and a chest x-ray showed a normal heart. The Veteran was discharged. In a July 2010 letter, the Veteran's private treating physician stated that a recent cardiac evaluation showed some mild left ventricular hypertrophy, diastolic dysfunction, and moderate right ventricular enlargement. VA treatment records reflect that in August 2010 the Veteran was diagnosed with mild congestive heart failure based on a 2010 echocardiogram showing mild left and right ventricular hypertrophy and diastolic dysfunction likely due to heavy smoking history. In an October 2010 statement, the Veteran stated that tests had now shown beyond any doubt that there was long-term damage to his heart from the anthrax vaccine, specifically an enlarged heart, congestive heart failure, irregular heartbeat, and irregular blood pressure. VA treatment records reflect that in February 2011 the Veteran reported episodes of heart racing. A cardiac event monitor showed sinus or atrial tachycardia. He was diagnosed with mild cardiomyopathy likely due to heavy smoking history. At a March 2011 cardiology consultation he reported palpitations since the late 1990s since receiving the anthrax vaccine. The cardiologist stated that it was unclear what was causing the Veteran's symptoms as event monitoring did not show an episode. A second monitor in April 2011 was normal. An echocardiogram showed mild diastolic dysfunction. He was asymptomatic at the time. In a May 2011 letter, the Veteran's treating VA physician noted a history of atrial tachycardia. The physician stated that this may be related to his anthrax vaccination. VA treatment records reflect that at a June 2011 cardiology consultation the Veteran reported continued palpitations and fatigue. He was diagnosed with palpitations without evidence of frank arrhythmia seen on event monitor and an essentially normal echocardiogram. His physician stated that his symptoms were of unclear etiology, but there was no evidence of arrhythmia or frank pathology. No further cardiology workup was indicated and the Veteran was referred back to his primary care provider. In December 2011 he reported to the emergency room with chest pain which developed one mile into his walk. There were no ECG changes and cardiac enzymes were negative, and his physician therefore determined that his chest pain was unlikely acute coronary syndrome. Supraventricular tachycardia was not ruled out, and he was kept for observation. The next morning he reported no overnight chest pain, shortness of breath, or palpitations. A stress test was negative and he was discharged. In February 2012 he reported improvement of cardiac symptoms since being on beta blockers. His palpitations were well-controlled. In May 2012 he reported ongoing intermittent chest pain, so severe that he had to go to an outside emergency room. Angiography showed several blockages of the left anterior descending artery and unstable plaque. Private treatment records reflect that in May 2012 the Veteran was referred to a cardiologist after reporting a worsening in tachycardia, chest discomfort, and elevated blood pressure. He reported that the condition began with the anthrax vaccine in 1999. Angiography showed abnormal coronary arteries and complex plaque with high-risk features in the mid-left anterior descending artery. An ECG showed sinus tachycardia and was otherwise within normal limits. A chest x-ray was normal. In June 2012 he underwent a left heart catheterization and coronary angiogram. He was diagnosed with coronary arteriosclerosis without significant obstructive disease and noncardiac chest pain. His primary care provider stated that his heart disease was minimal. VA treatment records reflect that in September 2012 the Veteran continued to report palpitations. The Veteran underwent another VA examination in October 2012. He reported symptoms occurring 6-12 times per month lasting 5 minutes to 24 hours. He reported that symptoms initially began after receiving the anthrax vaccine and experiencing chest pain and an irregular heartbeat. Since that time he reported that the condition had worsened with frequent tachycardia, PVCs, shortness of breath, angina, fatigue, and dizziness. The examiner noted that the Veteran had experienced congestive heart failure but that it was not chronic. Physical examination was normal. There was no evidence of cardiac hypertrophy or dilatation. An x-ray showed normal heart size. An echocardiogram was normal. He was diagnosed with atherosclerotic cardiovascular disease. The examiner opined that it was less likely than not that the heart disability was caused by the in-service anthrax vaccine. This opinion was based on the rationale that such an opinion was consistent with the Veteran's medical records and that his chest pain had been determined to be noncardiac in nature. VA treatment records reflect that in December 2012 the Veteran continued to report palpitations. In July 2013 he reported that his cardiomyopathy was stable and asymptomatic. In his November 2013 substantive appeal, the Veteran argued that the statement of the case ignored his lack of a heart disability prior to induction, information provided as to known side effects of the anthrax vaccine, his consistent and chronic heart problems since 1999, the frequency of his symptoms, his need for medication, and the fact that his current disability qualifies as ischemic heart disease. He further stated that he was discharged from service in May 2001 due to his heart disability. VA treatment records reflect that in December 2013 the Veteran reported a number of episodes of high heart rate from the prior month. In a November 2014 statement, the Veteran again made claims about the anthrax vaccine's side effects and the degree to which the military was aware of the risk of adverse reactions. He stated that his adverse reaction had now become a chronic condition that had lasted for over 14 years. He further stated that the cardiologist who opined that his chest pain was noncardiac in June 2012 erred by basing this opinion on the catheterization performed while the Veteran was sedated, thus relaxing the arteries and masking the etiology of his chest pain. The Veteran further cited his experience and training as a paramedic to lend weight to his analysis. VA treatment records reflect that in June 2015 the Veteran reported episodes of tachycardia, most recently in April. An ECG was normal. An echocardiogram showed no significant change since the prior study, specifically mild left ventricular diastolic dysfunction, mild tricuspid regurgitation, and mild aortic root dilatation. In June 2016 he reported occasional chest pressure that responds to nitroglycerin. At his August 2016 hearing, the Veteran reported that in service his first anthrax shot gave him angina that then went away. He reported that after the third shot, the whole world got dark, he got exhausted, and he started experiencing premature atrial contractions. He stated that since then his health had continuously deteriorated. He had hypertrophy in the ventricles and congestive heart failure at times. His wife reported that ever since he received the anthrax shots, he would regularly have to lie down to equalize his heart. The Veteran's claims file was reviewed by a VA examiner in February 2017. The examiner opined that the Veteran's current disability was less likely than not related to his in-service symptoms related to the anthrax vaccine. This opinion was based on the rationale that fatigue and premature atrial contractions, the symptoms experienced in service, are distant and separate diagnoses from the Veteran's current arteriosclerotic cardiovascular disease, cardiomyopathy, and supraventricular tachycardia. The examiner further noted that ECGs in service specifically did not show supraventricular tachycardia. As an initial matter, the Board notes that in August 2013 VA issued a formal finding of the unavailability of service treatment records subsequent to 1999. It appears that records from 1999 through 2001 have since been added to the claims file, but periods of ACDUTRA and active duty subsequent to that date are not wholly accounted for. In a June 2013 letter, the Veteran was informed that VA had been unable to obtain his service treatment records, and that further evidence corroborating his in service injuries should be submitted if available. The Board is mindful that, in a case such as this, where some service treatment records are unavailable, there is a heightened obligation to explain findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While it is unfortunate that some of the Veteran's service treatment records are unavailable, the Board notes that the file contains ample records documenting the relevant symptoms from August and September 1999 which the Veteran claims are related to his current disability. The Board finds that the evidence is at least in equipoise as to whether cardiac arrhythmia arose in service. Despite inconsistent diagnostic evidence, the Veteran has consistently and credibly reported arrhythmias of the heart since he first reported them in service, and VA examinations in September 2009 and May 2010 diagnosed current cardiac arrhythmia based on subjective reports. Diagnostic tests have shown arrhythmias at least some of the time during this period. Whether or not this arrhythmia was caused by the anthrax vaccine is irrelevant because it arose in service, having first been reported during a period of active duty. For these reasons, the Board finds that the evidence is at least in equipoise as to whether cardiac arrhythmia arose in service, and service connection is granted for that disability only. The Board further finds that the evidence weighs against a finding that a current heart disability other than cardiac arrhythmia is related to service. The Veteran has provided substantial information showing that the anthrax vaccine causes adverse reactions. Because the Veteran received the vaccine on active duty, however, the question is not whether his in-service symptoms were caused by the anthrax vaccine. The question before the Board is whether his current heart diagnoses other than arrhythmia are related to the symptoms he experienced in 1999, whether they were caused by the injections or not. The February 2017 examiner explained that these current heart diagnoses are separate and distinct from the symptoms and diagnoses he exhibited in 1999. This opinion is probative, as it is consistent with the bulk of the Veteran's treatment records. While the Veteran had consistently reported cardiac arrhythmia since service, his diagnostic tests routinely found nothing otherwise wrong with his heart. Treatment records establish that other diagnoses arose years after separation from service, and there is no medical evidence that his arteriosclerotic cardiovascular disease or episodes of congestive heart failure are related to his arrhythmia or otherwise related to service. For these reasons, the Board finds that the evidence weighs against a finding that a current heart disability other than cardiac arrhythmia is related to service, and service connection is therefore denied. ORDER New and material evidence has been presented, and the claim for service connection for a heart disability is reopened; the appeal is granted to this extent only. Service connection for cardiac arrhythmia is granted. Service connection for a heart disability other than cardiac arrhythmia is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs