Citation Nr: 18158231 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-53 565 DATE: December 14, 2018 ORDER Entitlement to service connection for paroxysmal atrial fibrillation with unstable angina (claimed as heart condition) is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The weight of the evidence of record is against finding that the Veteran’s paroxysmal atrial fibrillation with unstable angina claimed as heart conditions is causally related to his military service. 2. The weight of the evidence of record is in relative equipoise as to whether the Veteran’s tinnitus is causally related to his military service. CONCLUSIONS OF LAW 1. The criteria for paroxysmal atrial fibrillation with unstable angina (claimed as heart condition) have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.12, 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1970 to December 1971 and from August 1974 to June 1976. According to a May 2007 Administrative Decision by the regional office, the Veteran’s discharge for his second period of service is dishonorable for VA purposes. These matters come before the Board on appeal from two separate ratings decisions: a December 2014 decision that denied service connection for paroxysmal atrial fibrillation with unstable angina, and a December 2015 decision that denied service connection for tinnitus. The Veteran filed a notice of disagreement with regard to paroxysmal atrial fibrillation with unstable angina in August 2015. The agency of original jurisdiction (AOJ) issued a statement of the case in October 2016. The Veteran appealed to the Board in October 2016. The Veteran filed a notice of disagreement with regard to tinnitus in October 2016. The AOJ issued a statement of the case in December 2016. The Veteran appealed to the Board in December 2016. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See 38 U.S.C. § 1110; Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a condition/disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such condition/disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a Veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). These diseases include AL amyloidosis, chloracne or other acneform diseases consistent with chloracne, all chronic B-cell leukemias, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, ischemic heart disease, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). Notwithstanding the foregoing presumptive provisions, the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of such direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). See also Brock v. Brown, 10 Vet. App. 155, 160-61 (1997), vacated on other grounds (Fed. Cir. Dec. 15, 2000). Further, where the Veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). As diabetes mellitus and cardiovascular-renal disease are each listed as a "chronic disease" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology and of 38 C.F.R. § 3.307 pertaining to presumptive service connection for chronic disease are potentially applicable to the issues of hypertension, and heart disease. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). 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. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Every Veteran is presumed to have been in sound condition at entry into service, except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 1. Service connection for paroxysmal atrial fibrillation with unstable angina (claimed as heart condition) is denied. The Veteran seeks service connection for a heart condition, asserting that he developed this condition during service. Alternatively, the Veteran maintains that he is entitled to the presumption of service connection for heart disease due to herbicide agent exposure during his service in the Republic of Vietnam. Service connection first requires medical or lay evidence of a current disability. The Veteran had a VA examination for heart conditions in November 2014. The examiner noted that the Veteran had paroxysmal atrial fibrillation which had an unclear onset but that was present in October 2014 when the Veteran had an echocardiogram. The examiner also noted that the Veteran had an unstable angina which had an unclear onset but that dated back to 1975 and may be related to his paroxysmal atrial fibrillation. The Veteran’s Service Treatment Records (STRs) do not reflect a diagnosis of paroxysmal atrial fibrillation with unstable angina. On an October 1969 report of medical history, the Veteran reported having occasional sharp pains in his right chest. However, during his October 1969 entrance examination, the Veteran’s heart and vascular system were noted as being normal. The Veteran’s exit examination in December 1971 was negative for any heart problems. The Veteran was then given another entrance examination in August 1974—in conjunction with his second period of service—where once again his heart and vascular system were noted as being normal. During this period of service, the Veteran complained of having had chest pain for four days in November 1975 which was not accompanied by any coughing or congestion. Two days later, the Veteran continued to complain of chest pain, so the Veteran was given an echocardiogram and a chest x-ray, which was normal. In June 1976 the Veteran was given an exit examination. The clinical evaluation section did not note any heart or vascular system problems, however the Veteran did self-report pain or pressure in his chest, and indicated that he was unsure about heart palpitations/pounding and heart trouble. In summary, the Veteran reported chest pain at the time of entry in 1969, and then again during his second period of service. Objective cardiac testing was negative. The Veteran underwent a VA examination for heart conditions in November 2014. The examiner stated that the etiology of the Veteran’s paroxysmal atrial fibrillation was unknown. Further, the examiner was unsure about the etiology of the Veteran’s unstable angina, however he noted that it could be related to the Veteran’s atrial fibrillation. Notably, the examiner stated that the Veteran did not have ischemic heart disease. In all, the examiner found no evidence to suggest that the Veteran had any heart problems prior to November 1975. An additional VA opinion was sought in December 2014 wherein the physician who reviewed the Veteran’s medical records concluded that the chest pain that the Veteran had complained of in November 1975 was less likely than not causally related to his military service. This doctor opined that the chest pain the Veteran suffered from at that time was of the non-cardiac variety. Further, medical records from August 2002 reflect that the Veteran saw his primary care physician and complained of chest pains; the doctor noted that the Veteran reported suffering from angina symptoms for the past five or six years. The doctor opined that the Veteran’s angina symptoms were probably due to chronic cardiac disease. Medical notes from this interaction also reflect that the Veteran was a smoker and had hypertension, which are risk factors for heart problems. However, an August 2002 stress test was negative for exercised induced angina or significant arrhythmia, and it did not confirm any cardiac disease. Thus, the available medical evidence indicates that the Veteran currently has paroxysmal atrial fibrillation with unstable angina. However, the available evidence fails to establish that there is a nexus between the Veteran’s current paroxysmal atrial fibrillation with unstable angina and his creditable military service. The Veteran reported experiencing chest pain on his October 1969 report of medical history, which was taken before the Veteran entered his first period of service. However, even if the Board assumes that the chest pains the Veteran reported at that time were caused by the same condition(s) that caused his 1974 chest pains, there is no evidence that any pre-existing chest pain condition was aggravated during his first period of service since the Veteran did not complain of or receive treatment for chest pains during this first period of service. Further, potential aggravation during the Veteran’s second period of service is moot because this period of service is not creditable for VA purposes. Furthermore, the Veteran’s paroxysmal atrial fibrillation cannot be presumptively service connected under the provisions of § 3.309(e) because the available medical evidence does not indicate that the Veteran has any of the conditions listed in that provision. Specifically, the available medical evidence indicates that the Veteran’s heart problems are not ischemic in nature, so presumptive service connection for ischemic heart disease would not be appropriate. Additionally, even if the Veteran’s chest pain in 1975 was ultimately found to be a cardiac event, the Veteran’s dishonorable period of service during that time is a bar to VA benefits. Accordingly, service connection for any disability linked to the Veteran’s complaints in 1975 is not warranted. The Board recognizes that the examiner from the November 2014 acknowledged being unable to locate the October 1969 report of medical history while reviewing the Veteran’s claims folder, and thus was not aware that the Veteran had reported chest pains at that time. However, this alone does not make the examination inadequate. This is especially true because even if the examiner was provided with such evidence, the outcome would not change. As noted above, the October 1969 report of chest pain only serves to establish a pre-existing condition. Because there is not basis upon which to find any complaints, treatment or diagnosis of chest pain during the Veteran’s first period of service, there is no basis on which to find aggravation. Thus, any error in this regard is harmless. Finally, while the August 2002 records suggest that the Veteran’s symptoms at that time could be manifestations of cardiac disease, the stress test confirmed that this was not the case, and there is no other medical evidence to support a finding of cardiac disease at that time. While the Veteran is to be given the benefit of any reasonable doubt, service connection for paroxysmal atrial fibrillation with unstable angina cannot be granted because the weight of the evidence of record is against a finding that this condition is at least as likely as not causally related to the Veteran’s military service. 2. Service connection for tinnitus is granted. The Veteran had a VA examination for hearing loss in November 2015. At that time, the VA examiner stated that the Veteran suffered from bilateral sensorineural hearing loss. The Veteran reported during the examination that he had been suffering from tinnitus for forty or more years. The Veteran is competent to report his tinnitus because the symptoms of tinnitus are readily observable by a lay person. During his military service, the Veteran was in the infantry and he reports that he was exposed to mortar fire without the use of hearing protection. The Veteran also is a combat Veteran, so it is reasonable to infer that he was exposed to gunfire, explosions, and other loud noises typical of a combat situation. However, the Veteran’s STRs reflect that his hearing was within normal limits bilaterally during the entirety of his military service. In particular his hearing was noted as unimpaired during his October 1969 entrance examination, his December 1971 exit examination, his August 1974 entrance examination, and his June 1976 exit examination. The examiner stated that it would be impossible to determine whether the Veteran’s tinnitus is causally related to his military service without resorting to speculation. The examiner noted that Veteran reported post-service occupations that involved exposure to loud noise, such as car manufacturing and house construction, and that the Veteran did not use hearing protection. Further, the Veteran reported noise exposure from going hunting without wearing hearing protection. However, the examiner did not adequately address the Veteran’s self-reported 40-year history of tinnitus. Further, in his December 2016 VA Form 9, Substantive Appeal to the Board, the Veteran specifically reported that his tinnitus had its onset during service. Although the Veteran did not identify whether the onset of his tinnitus occurred during the first (honorable) period of service, or his second (dishonorable) period of service, the Board will resolve all doubt in the Veteran’s favor, and find that the onset of the tinnitus, according to the Veteran, occurred during the first period of service. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence regarding the etiology and onset of the Veteran’s tinnitus is in relative equipoise. That is, the examiner pointed out that the Veteran had noise exposure during, and following active service, and therefore was unable to provide an opinion without resort to speculation. Given the Veteran’s competent reports of the onset of his tinnitus, the Board finds that the evidence in favor of the claim is equally weighed against the evidence suggesting post-service etiology. As the evidence is in relative equipoise, service connection for tinnitus is warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Attorney Advisor