Citation Nr: 1806293	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  14-26 954	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to service connection for heart disease.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from May 1970 to September 1971. He also had reserve service from March 1969 to May 1970.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In that rating decision, the RO denied service connection for heart disease.

The Veteran's appeal for service connection for psoriasis previously was on appeal before the Board. In an October 2017 rating decision the RO granted service connection for psoriasis, so that issue is resolved.

In April 2017 the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record.

In October 2017 the Board remanded the heart disease service connection issue to the RO for the development of additional evidence. The RO developed additional evidence and returned the issue to the Board.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

Heart arrhythmia and non-ischemic cardiomyopathy found years after service did not have onset in service, and are not attributable to or worsened by PTSD effects including sleep deprivation.



CONCLUSION OF LAW

No current heart disease or disorder was incurred or aggravated in service, may be presumed to be service-connected, or is proximately due to or the result of any service-connected disability. 38 U.S.C. §§ 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2016). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2016). 

In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

The RO provided the Veteran notice in letters issued in 2003 through 2016. In those letters, the RO notified him what information was needed to substantiate claims for service connection. The 2003 through 2016 letters also addressed how VA assigns disability ratings and effective dates.

In the April 2017 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach a decision on the issue on appeal.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Heart Disease

The Veteran states that he has heart disease that was diagnosed years after his service. He contends that his service-connected posttraumatic stress disorder (PTSD) causes severe sleep impairment, and that the sleep deficit caused or aggravates his heart disease. He also contends that his heart disease is attributable to events, including claimed herbicide exposure, during his service.

Service connection may be established on a direct basis for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for certain chronic diseases, including cardiovascular-renal disease, may be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.

Under certain circumstances, service connection for certain specified diseases may be presumed if a veteran was exposed during service to certain herbicides, such as Agent Orange, that contain dioxin. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. §§ 3.307, 3.309(e) (2016). The diseases for which service connection is presumed based on herbicide exposure include ischemic heart disease. 38 C.F.R. § 3.309(e). If a veteran was exposed to such an herbicide during service, service connection for ischemic heart disease will be presumed if the disease becomes manifest to a degree of 10 percent disabling at any time after service. 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e).

Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Aggravation of a non-service-connected disease or injury by a service-connected disability may also be service-connected. 38 C.F.R. § 3.310(b).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The Veteran states that he was diagnosed with heart disease years after his service. His service treatment records do not show any complaint or finding of any heart problem. Thus the preponderance of the evidence is against the manifestation of any heart problem during service. After separation from service, he had a VA medical examination in October 1971 to address his claim for service connection for a skin disorder. On examination his blood pressure was 118/74. The examiner found that his cardiovascular system was in normal condition. The Veteran has not reported a history of any heart symptoms or problems during the year following his separation from service. As there is no evidence that he had cardiovascular-renal disease that manifested to a compensable extent during that year, there is no basis to presume service connection for heart disease.

The Veteran had private treatment in March 2002 for kidney stones. Treatment included ablation of the stones and stent placement. Removal of the stent a week later was planned. Treatment notes are silent as to his cardiovascular condition.

The Veteran had VA treatment in July 2003 for a recurrence of kidney-area pain. He denied any history of heart problems. A clinician found that his heart had a regular rhythm and rate, with no murmurs. A clinician indicated that it was possible that he had a kidney stone. He had private treatment in August 2003 to address a kidney stone. No heart problems were found at that time.

In VA treatment in November 2003, the Veteran reported a history of a heart disorder. A clinician noted a regular heart rate and rhythm, with an occasional extra beat. VA treatment notes from 2004 forward reflect the Veteran's reports of nightmares and interrupted and limited sleep. Lists of medications include medication for sleep. Lists of diagnoses include arrhythmia. From 2010 forward, testing showed evidence of cardiomyopathy. In February 2012, the Veteran submitted a claim for service connection for heart disease. In July 2016, VA testing showed no evidence of ischemia. From September 2016 forward, physicians have described his heart disease as non-ischemic cardiomyopathy.

The Veteran contends that he was exposed to herbicides during his service in Guam, and that the herbicide exposure led to his heart disease. Physicians have found that he has arrhythmia and non-ischemic cardiomyopathy. He has not been found to have ischemic heart disease. The heart disorders he has are not among the diseases for which service connection is presumed if there was herbicide exposure in service. Therefore a determination as to whether he had herbicide exposure in service is not relevant to his heart disease service connection claim.

The Veteran has PTSD for which VA has established service connection. He contends that his heart disease was caused by or is aggravated by manifestations of his PTSD, including severe sleep impairment. In the April 2017 Board hearing, he reported that he was first aware of having heart problems in about 1998 or 1999. He stated that, from the early 1970s forward, his PTSD has caused severe sleep problems, such that he has no more than two or three hours of sleep per night. He reported that, during treatment in about 2001 or 2002, for kidney stones, a cardiologist suggested that his sleep deprivation due to PTSD might have caused or aggravated his heart problems.

The claims file contains records of VA and private treatment of the Veteran for kidney stones in 2002 and 2003. However, those records, and other medical records assembled through 2016, do not contain any opinion regarding a causal or aggravation relationship between his PTSD and sleep problems and his heart disorders. In October 2017 the Board remanded the heart disease service connection issue for a VA medical examination with file review and opinion as to the likely etiology of his heart disease, including any relationship to sleep problems and PTSD.

In October 2017 the Veteran had a VA heart conditions examination. The examiner reported having reviewed the claims file. The examiner noted that medical records showed diagnoses of non-ischemic cardiomyopathy and of paroxysmal atrioventricular nodal reentry tachycardia (AVNRT), status post ablation. The examiner provided the opinion that it is at least as likely as not that the cardiomyopathy is mediated by the tachycardia. The examiner stated the opinion that it is less likely than not that the Veteran's severe sleep impairment and/or other effects of his PTSD proximately caused or aggravated his cardiomyopathy or his AVNRT. She explained that AVNRT results from the formation of a reentry circuit. She stated that there was insufficient medical evidence to correlate AVRNT with sleep impairment and/or PTSD.

The October 2017 VA examiner considered the evidence in the claims file and explained her opinion against the likelihood that PTSD and sleep deprivation caused any of the Veteran's current heart disorders, including AVRNT and cardiomyopathy. The examiner's opinion is persuasive.  There is no evidence to the contrary aside from the Veteran's own lay contention which are of limited value given the complexity of the nature and etiology of the current heart disorder. The greater persuasive weight of the evidence is against his PTSD and sleep deprivation having caused or aggravated his current heart disorders.

As the preponderance of the evidence is against any current heart disorder having onset earlier than many years after service, or being caused or aggravated by any service-connected disorder, the Board denies service connection.


ORDER

Entitlement to service connection for heart disease or disorder is denied.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs