Citation Nr: 18145454 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 15-02 378 DATE: October 29, 2018 ORDER 1. Entitlement to service connection for atrial fibrillation, to include as due to exposure to Agent Orange is denied. 2. Entitlement to a 10 percent rating for left leg shin splints is granted. REMANDED 3. Entitlement to service connection for a variously diagnosed skin disability, to include as due to exposure to Agent Orange is remanded. 4. Entitlement to service connection for a heart disability other than atrial fibrillation, to include as due to exposure to Agent Orange is remanded. FINDINGS OF FACT 1. Atrial fibrillation was not manifested in service; is not listed in 38 C.F.R. § 3.309(e); and the preponderance of the evidence is against a finding that the Veteran’s diagnosed atrial fibrillation is etiologically related to his service, to include as due to exposure to Agent Orange. 2. The Veteran’s service-connected left leg shin splint disability is shown to be manifested by pain on weight bearing and pain to palpation; there is no evidence of malunion of the tibia or fibula or of related knee or ankle disability. CONCLUSIONS OF LAW 1. Service connection for atrial fibrillation is not warranted. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. A 10 percent rating is warranted for the Veteran’s left leg shin splints. 38 U.S.C.§§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1968 to February 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision. [In April 2018 the Veteran opted into the Rapid Appeals Modernization program (RAMP) higher level review process regarding to a claim for a higher rating for right leg shin splints. In June 2018 he was notified that the claim for a higher rating for right leg shin splints will be adjudicated under RAMP. Therefore, that matter is not presently before the Board. The claims of service connection for atrial fibrillation, a skin disability, and heart disease, and seeking a higher rating for left leg shin splints were already activated at the Board when the RAMP opt-in was received, and are no longer eligible for the RAMP program. Accordingly, they are addressed herein.] 1. Service connection for atrial fibrillation, to include as secondary to exposure to Agent Orange is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include cardiovascular disease) may be presumed to be service-connected if manifested to a compensable degree within a specified period following separation from service (one year for cardiovascular disease). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309(a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Certain chronic diseases (to include ischemic heart disease (IHD)) may be presumed to be service connected due to exposure to Agent Orange, if manifested in a Veteran who served in Vietnam during the Vietnam Era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Arrhythmias (such as atrial fibrillation) are not listed as a disease warranting presumptive service connection under 38 U.S.C. § 1116, and are not recognized as an IHD. 38 C.F.R. § 3.309 (e) and Note (2) following. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnosis related to heart disease. The earliest postservice clinical record pertaining to a heart disorder is in January 2007. A February 2008 treatment record notes atrial fibrillation since January 2007. A December 2008 private treatment record notes atrial fibrillation. An April 2008 private treatment summary notes that an EKG showed sinus bradycardia with normal electrocardiographic interval. It was noted that a January 2008 echocardiogram showed mild left atrial enlargement. An October 2009 private treatment record notes a history of paroxysmal atrial fibrillation status post atrial fibrillation ablation on two occasions. An October 2010 treatment record notes that the Veteran underwent an atrial fibrillation ablation procedure in February 2009. An October 2014 Holter monitor study showed sinus rhythm (SR) with atrial premature contractions (APCS) and brief runs of supraventricular tachycardia (SVT) with no atrial fibrillation (AFib). It is not in dispute that the Veteran has/has had atrial fibrillation. However, atrial fibrillation was not manifested in service or until decades later; his STRs, including his January 1972 separation examination report are silent for complaints, treatment, findings, or diagnosis of a cardiac arrhythmia; such was not clinically noted until January 2007. Consequently, service connection for atrial fibrillation on the basis that it became manifest in service and persisted (or on a presumptive basis as a chronic disease under 38 U.S.C. § 1112; 38 C.F.R. § 3.307, 3.309(a)) is not warranted. Regarding whether the Veteran’s atrial fibrillation may otherwise be related to his service/or to exposure atrial fibrillation is not among the diseases listed in 38 C.F.R. § 3.309(e); the presumptive provisions of 38 U.S.C. § 1116 do not apply. Therefore, to substantiate this claim the Veteran must present medical evidence supporting it (as whether atrial fibrillation may be etiologically related to his service/environmental exposures therein is, in the absence of evidence of onset in service or continuity, a medical question. The Veteran’s own opinion in the matter has no probative value. As the record contains no medical evidence that the Veteran’s atrial fibrillation may be related to his service, and he has submitted no medical evidence to that effect, the preponderance of the evidence is against this claim. The appeal in the matter must be denied. 2. A 10 percent rating for left leg shin splints is granted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. There is no specific diagnostic code for shin splints; based on anatomical location the disability is rated by analogy to the criteria for rating disability of the tibia and fibula, in Code 5262. Under Code 5262, a 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. If the requirements for a 10 percent rating are not met, a 0 percent rating is to be assigned. 38 C.F.R. §§ 4.31, 4.71a. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). On November 2012 VA examination the diagnosis was bilateral shin splints. It was noted that the Veteran experienced bilateral pain with weight bearing activity including exercise and general distance walking. The functional impact was noted to be increased symptoms with prolonged walking which required frequent breaks in activity as well as an inability to complete direct weight bearing exercise. Knee or ankle disability was not noted. On October 2017 VA examination the Veteran reported daily flare-ups with walking. Examination findings included bilateral shin pain with weight-bearing and pain on palpation along the anterior shin, requiring use of a cane [for ambulation] and Motrin and topical gel for pain. Shin pain with weight-bearing was noted on both the November 2012 and October 2017 VA examinations, and the latter examination also found tenderness to palpation. Noting that the rating is by analogy (as actual malunion or nonunion of the tibia and fibula or related ankle or knee disability is not shown), the Board finds that such manifestations, considering the guidelines in 38 C.F.R. § 4.59, place the evidence for and against whether a 10 rating is warranted for the left leg shin splints at least in equipoise. Resolving reasonable doubt in the Veteran’s favor, as required (see 38 C.F.R. § 4.3) the Board finds that a 10 percent rating is warranted for the left leg shin splints. REASONS FOR REMAND 3., 4. Entitlement to service connection for a skin disability, and for heart disease, both to include as due to exposure to Agent Orange, is remanded. The Board finds that further development of the record is necessary to comply with VA’s duty to assist. The Veteran has alleged that his disabilities resulted from exposure to Agent Orange in service. He has presented three different allegations regarding the manner of his exposure to Agent Orange in service. He alleges that enroute to Thailand he stopped in Da Nang [Vietnam]; that he was exposed to Agent Orange when his duties placed him on the perimeter of the base where he was stationed in Thailand; and that as an aircraft repairman he was exposed to Agent Orange repairing planes that had sprayed or transported Agent Orange. In September 2013 a JSRRC Coordinator noted all three allegations of exposure to Agent Orange, but did not address [offer an opinion regarding] the plausibility of the Veteran’s alleged exposure to Agent Orange by his aircraft repairman duties. Exposure to Agent Orange has not yet been conceded, that allegation requires development. The matters are REMANDED for the following: Arrange for exhaustive development for all pertinent information, and forward it to the JSRRC with a request for an addendum memorandum regarding the likelihood that the Veteran was exposed to Agent Orange by his duties in service as an aircraft repairman. The information obtained should respond to: (a.) Were aircraft that carried Agent Orange, based, serviced, or maintained at a base where the Veteran was stationed (while he was at the base)? (b.) Was the Veteran’s unit one that repaired, serviced, or maintained any such aircraft? GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Staskowski, Associate Counsel