Citation Nr: 18145205 Decision Date: 10/26/18 Archive Date: 10/26/18 DOCKET NO. 17-26 408 DATE: October 26, 2018 ORDER Entitlement to service connection for a heart condition, to include arrhythmogenic right ventricular dysplasia (ARVD), is granted. FINDINGS OF FACT 1. The Veteran’s heart condition is shown by clear and unmistakable evidence to have preexisted entrance into active duty service. 2. There is clear and unmistakable evidence that the Veteran’s heart condition was aggravated beyond its natural progression by active duty service. 3. The preponderance of the evidence of record shows that the Veteran’s currently diagnosed heart condition is related to service. CONCLUSION OF LAW The criteria for service connection for a heart condition are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1988 to August 2009. During his period of service, the Veteran earned the Royal Thai Airborne Wings, Defense Meritorious Service Medal, Joint Services Commendation Medal, Meritorious Service Medal (2nd Award), Joint Services Achievement Medal (4th Award), Army Achievement Medal, Joint Services Meritorious Unit Award (2nd Award), Army Good Conduct Medal (2nd Award), National Defense Service Medal (2nd Award), Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Korean Defense Service Medal, Noncommissioned Officer Professional Development Ribbon (2nd Award), Army Service Ribbon, Overseas Service Ribbon (3rd Award), and Senior Parachutist Badge. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to prevail on a claim of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran contends that his heart condition was either first manifested during or was aggravated beyond its natural progression by active service. Specifically, the Veteran contends that his heart condition was not properly diagnosed during service, thus causing the condition to worsen. Treatment records indicate that the Veteran has been diagnosed with arrhythmogenic right ventricular dysplasia (ARVD). Thus, the current-disability criterion for service connection is met. See Shedden, supra. Regarding the second element of service connection, there is a question as to whether the Veteran’s heart condition was incurred in or aggravated by active service. In a case where there is no preexisting condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). Both prongs must be proven in order to rebut the presumption. The presumption of soundness relates to the second requirement, which is the showing of in-service incurrence or aggravation of a disease or injury. In order to invoke the presumption of soundness, a veteran must show that he or she suffered from a disease or injury while in service. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second service connection requirement without further proof. Horn, 25 Vet. App. at 236. In other words, if a veteran is presumed sound at service entrance, a disease or injury that manifested in service is deemed incurred in service if the Secretary is unable to rebut the presumption. Gilbert, 26 Vet. App. at 53. In this case, a heart condition was not “noted” upon service entrance. Thus, the presumption of soundness applies. See 38 U.S.C. § 1111; Horn, 25 Vet. App. 231. However, the record contains clear and unmistakable evidence that a heart condition preexisted service. The Veteran appeared for a VA heart examination in November 2015. In a March 2016 supplemental opinion, the examiner indicated that the Veteran’s diagnosed heart condition was an inherited disease. Further, as noted above, the February 2018 VHA examiner also determined that the Veteran’s disability was an inherited disease. VA’s General Counsel has held that familial or inherited diseases are not excluded from service connection. VAOPGCPREC 67-90 (Sept. 27, 1988), VAOPGCPREC 82-90 (July 18, 1990). A disease, which is defined as a condition capable of improving or deteriorating, is service-connectable if pathology first manifests in service or the disease progresses at a greater than normal rate during active service. Id. However, the presumption of soundness still applies to congenital diseases that are not noted at entry, and to establish service connection, VA must show by clear and unmistakable evidence that the congenital disease both preexisted service and was not aggravated by service. Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In the present case, based on the evidence of record discussed above, the Veteran’s ARVC is clearly an inherited disease. In this regard, in support of her March 2016 opinion, the VA examiner cited medical literature which indicted that ARVD is an inherited disease that affects teens or young adults, and can cause sudden death. The examiner noted that it is a rare cardiomyopathy that occurs when the muscle tissue in the right ventricle dies and is replaced with scar tissue. Additionally, the February 2018 VHA examiner also indicated that the Veteran’s ARVD and accompanying cardiomyopathy (ARVC) is an inherited cardiomyopathy that results from defects in genes related to desmosomes. The examiner stated that clinical presentation of ARVC is most common between the ages of 10 and 50 years, with a mean age of diagnosis of 30 years. Therefore, though not symptomatic prior to service, based on the evidence of record, the Board finds that there is clear and unmistakable evidence that the Veteran had a preexisting heart condition prior to service due to its nature as an inherited disease. Thus, the first prong of rebutting the presumption of soundness has been met. But as stated above, rebutting the presumption of soundness is a two-part analysis. With the Veteran’s heart condition having been shown by clear and unmistakable evidence to preexist service, consideration must be given to whether clear and unmistakable evidence exists to show that the heart condition was not aggravated during service, to fully rebut the presumption of soundness. Id. That is, “VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, in order to fully rebut the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation.” Horn, 25 Vet. App. at 236. In this regard, after carefully reviewing the evidence of record, the VA has not met its high burden here. The Board does not find there is clear and unmistakable evidence of no aggravation, as there is probative evidence suggesting in-service aggravation of a preexisting inherited heart condition during service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Service treatment records reflect several findings of abnormal electrocardiograms (EKGs) and premature ventricular contractions (PVCs). Notably, a July 1992 service treatment record shows a finding of PVCs and an abnormal EKG. The examiner noted that the Veteran did not have cardiac history; however, EKG results showed very frequent multifocal PVCs including couplets and anterior T-wave inversions with early polarization consistent with persistent juvenile pattern. The Veteran underwent a Thallium stress test in August 1992. Normal results were noted. Thus, in-service physicians concluded that his irregular heartbeat was normal and benign. The Veteran appeared for a VA heart condition examination in November 2015. In a March 2016 supplemental opinion, the examiner opined that the Veteran’s in-service symptoms and signs were those expected as natural progression of this condition and no aggravation was noted. The Board finds this medical opinion to be of limited probative with regard to aggravation. The examiner failed to adequately address possible aggravation shown in service, particularly the August 1992 treatment record which indicated that multifocal PVCs were noted with exercise. A Veterans Health Administration (VHA) opinion was obtained in February 2018. The examiner stated that medical literature documents adverse effects of strenuous physical exercise in ARVC as both short-term, which manifests in the form of arrhythmias, as well as long-term, which manifests in the form of cardiomyopathy. In this regard, the examiner opined that the Veteran’s physical conditioning performed during active duty was as likely as not aggravated by active service. Specifically, the examiner opined that the intense exercise and physical activity associated with active military service is likely to have contributed to progression of the Veteran’s disease from asymptomatic status to development of life threatening ventricular arrhythmias diagnosed five years after active duty. Based on the evidence presented, the Board affords Dr. M. E.’s February 2018 opinion the most probative weight, as he persuasively explained that the intense exercise and physical activity associated with active military service caused aggravation that contributed to progression of the Veteran’s disease that was initially asymptomatic. The presumption of soundness is not rebutted, as VA cannot meet its burden to show by clear and unmistakably evidence both that the condition existed prior to service and that it was not aggravated by service. Therefore, the in-service incurrence element of a service connection claim is met. See Shedden, supra. As to the third element of service connection, medical evidence must establish a nexus between the current disorder and service. As stated above, the Veteran appeared for a VA heart condition examination in November 2015. In a March 2016 supplemental opinion, the examiner opined that the in-service symptoms and signs of the Veteran’s disability were a natural progression of his condition and indicated that no aggravation was noted. A VHA opinion was obtained in February 2018 to determine the nature and etiology of the Veteran’s heart condition. The examiner opined that, although not formally diagnosed during active duty, the Veteran’s ARVC did manifest itself during active duty. Specifically, the examiner noted that the Veteran’s symptoms, which included palpitations and PVCs, together with the abnormal electrocardiogram (ECG), were initial manifestations of ARVC consistent with the natural history of the disease. Furthermore, the examiner stated that medical literature documents the adverse effects of strenuous physical exercise in ARVC as both short-term, which manifests in the form of arrhythmias, as well as long-term, which manifests in the form of cardiomyopathy. In this regard, the examiner opined that the Veteran’s physical conditioning performed during active duty was as likely as not aggravated by active service. Specifically, the examiner opined that the intense exercise and physical activity associated with active military service is likely to have contributed to progression of the Veteran’s disease from asymptomatic status to development of life threatening ventricular arrhythmias diagnosed five years after active duty. In consideration of the evidence of record, the Board finds that the preponderance of the evidence is in favor of service connection for ARVD. In so finding, the Board acknowledges the negative nexus opinion provided by the March 2016 VA examiner; however, the examiner failed to adequately address possible aggravation shown in service. The Board does, however, find the February 2018 VHA opinion to be of more probative value, as the opinion was rendered by a board-certified cardiologist and is supported by a thorough explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The examiner considered all the evidence of record, cited medical literature, and offered sound medical reasoning in support of its conclusions. As such, the benefit of the doubt will be conferred in the Veteran’s favor, and his claim for service connection for ARVD is granted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Joseph, Associate Counsel