Citation Nr: 18160836 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 16-63 814 DATE: December 28, 2018 ORDER Service connection for a heart disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for anterior compartment syndrome, left lower extremity. Entitlement to a rating in excess of 10 percent for anterior compartment syndrome, right lower extremity. FINDING OF FACT The Veteran’s heart disability, left side cardiomyopathy, is neither proximately due to nor aggravated beyond its natural progression by his service-connected disabilities, including hypertension, and is not otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a heart disability, left side cardiomyopathy, have not been met. 38 U.S.C. §§ 1112, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1985 to May 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran originally requested a hearing before the Board. In December 2014, through his attorney, he withdrew that request in writing. 38 C.F.R. 20.704(e). 1. Entitlement to service connection for a heart disability Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for certain chronic heart diseases, such as cardiovascular-renal disease, endocarditis, and myocarditis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran contends that he has a current heart disability caused or aggravated by his service connected disabilities, specifically either obstructive sleep apnea or hypertension. He has not asserted that his heart disability is a result of his military service, and the evidence does not reflect that the disability was present in service, diagnosed during the applicable presumptive period, or is otherwise a result of service. Therefore, the Board will not further address a direct theory of entitlement. See Robinson v. Mansfield, 21 Vet. App. 545, 559 (2008), aff’d Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (holding that claims that have no support in the record need not be considered by the Board; the Board is not obligated to consider “all possible” substantive theories of recovery). A disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The question for the Board is whether the Veteran has a current heart disability that is proximately due to or the result of, or was aggravated beyond its natural progress by service-connected disability. The medical evidence history establishes that the Veteran was diagnosed with hypertension in 2005. That same year, in July 2005, an echocardiogram revealed four chamber enlargement consistent with ischemic or dilated cardiomyopathy. At that time, the Veteran’s medical providers believed the cardiomyopathy had a viral etiology from an infection originating one month earlier. An August 2005 cardiac catheterization ruled out coronary disease but confirmed generalized cardiomyopathy. Thereafter, the Veteran showed improvement and by June 2007, the Veteran was noted to have recovered from severe cardiomyopathy although he still had left atrial enlargement, left ventricular hypertrophy, and significant hypertension. A January 2010 echocardiogram established that the Veteran had left hypertrophic hypertrophy, mild tricuspid regurgitation, and mild pulmonic insufficiency associated with mild enlargement of the right side cardiac chambers. At least since February 2010, medical records have noted the Veteran had a history of viral myocarditis versus cocaine induced cardiomyopathy. The records indicate that the Veteran had been a cocaine user until he developed his heart symptoms. https://appeals.cf.ds.va.gov/reader/appeal/3039672/documents/30313804 In a March 2012 letter, one of the Veteran’s care providers stated that viral myocarditis caused the cardiomyopathy and a cocaine induced cardiomyopathy was not entertained. He stated as likely as not obstructive sleep apnea contributed to the cardiomyopathy right sided heart failure and pulmonary hypertension. In a September 2012 letter, the Veteran’s cardiologist noted the Veteran had suffered generalized cardiomyopathy but no coronary artery disease. He stated however, that more likely than not, the Veteran’s cor pulmonale resulted from the Veteran’s then undiagnosed obstructive sleep apnea (diagnosed in 2008). In February 2014, a VA examiner noted the Veteran had been diagnosed with generalized cardiomyopathy in 2005. He stated the Veteran had very mild concentric left ventricular hypertrophy from high blood pressure without explaining how he reached that conclusion. In July 2016, the Veteran received a VA examination and the examiner again noted the Veteran developed severe generalized cardiomyopathy in 2005 with congestive heart failure and pulmonary hypertension secondary to viral myocarditis and cocaine abuse. He was noted to have normal coronary arteries. A chest X-ray for the VA examination showed a slight increase in heart size, mildly enlarged with mild left ventricular prominence. The examiner observed that a March 2012 echocardiogram showed mild left ventricular diastolic dysfunction and mild left ventricular hypertrophy. The examiner concluded that the Veteran’s cardiomyopathy was less likely than not caused by or permanently aggravated beyond its natural progression by the hypertension. Citing medical literature, the examiner stated that although hypertension can contribute to systolic dysfunction in patients with a dilated cardiomyopathy, there is no current evidence of chronic heart failure or pulmonary hypertension. As to obstructive sleep apnea, the examiner conceded that untreated sleep apnea can contribute to pulmonary artery pressure elevation, there is no current evidence of chronic heart failure or pulmonary hypertension In a February 2017 addendum, the examiner explained further that sleep apnea can contribute to the development of pulmonary hypertension that may lead to “RIGHT ventricular dysfunction” (emphasis in the original). He further noted that the right ventricular size and function since the initial cardiac symptoms has been normal or at least the Veteran has not had any right ventricular dysfunction since 2012. Sleep apnea/pulmonary hypertension does not cause or contribute to left ventricular dysfunction. The Veteran’s only chronic heart residual is a mildly increased left ventricular wall thickness with normal global left ventricular systolic function and a normal left ventricular ejection fraction. His right ventricular size and function is normal. Therefore, the residuals of his chronic left ventricular cardiomyopathy would less likely as not be caused by or be permanently aggravated by his service connected sleep apnea and/or pulmonary hypertension Finally, the Board notes the Veteran submitted an internet article in October 2014 stating hypertensive heart disease includes heart failure, coronary artery disease and angina and thickening of the heart muscle, which is called hypertrophy. The Board concludes that, while the Veteran has a current diagnosis of left sided cardiomyopathy, the preponderance of the evidence is against finding that the Veteran’s left sided cardiomyopathy is proximately due to or the result of, or aggravated beyond its natural progression by a service-connected disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). As discussed above, the July 2016 VA examiner concluded that the Veteran’s left sided cardiomyopathy is instead more likely due to a viral infection or the Veteran’s cocaine use. The rationale was that if obstructive sleep apnea or hypertension affects the heart by causing hypertrophy, it will affect the right side of the heart. In this instance, the Veteran only has left sided hypertrophy and not the right. The Board interprets the VA examiner’s report as concluding that any right sided hypertrophy noted in 2005 was an acute condition, not a chronic one as he repeatedly emphasized that at least since 2012, the Veteran’s right sided ventricle has been entirely normal. The Board is aware that a February 2014 VA examiner and the Veteran’s treating physicians have stated high blood pressure and obstructive sleep apnea contributed to the cardiomyopathy right sided heart failure and pulmonary hypertension, e.g., the Veteran’s cor pulmonale. Acute cor pulmonale is an acute overload of the right ventricle due to pulmonary hypertension. Dorlands Illustrated Medica Dictionary, page 421 (31st edition, 2007). Chronic cor pulmonale is heart disease characterized by hypertrophy and sometimes dilation of the right ventricle secondary to disease affecting the structure or function of the lung; diseases primarily affecting the left side of the heart are excluded. Id. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66, 70 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician’s opinion. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998); Bloom v. West, 12 Vet. App. 185, 187 (1999) value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion.”). In this instance, the Veteran’s treating physicians and the 2014 VA examiner have asserted a relationship between the Veteran’s heart disability and service connected disabilities with no further specificity or discussion of rationale. Considering the relative merits of the findings and the details of the opinions, the Board places more probative weight on the unfavorable medical opinions of the July 2016 VA examiner because these opinions are well reasoned, detailed, consistent with other evidence of record, included reviews of the claims file and reference to the medical literature. Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). The Board also acknowledges the literature submitted by the Veteran and his attorney indicating an association between hypertensive heart disease (e.g., the Veteran’s hypertension) and a finding of hypertrophy of the heart. However, this evidence is general in nature and no examiner has specifically related the information contained therein to the Veteran. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (“This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional.”). The article is clearly directed to a lay reader such as a patient, not a medical professional, and only discusses hypertrophy generally. It does not state that all hypertrophy, wherever it is located in the heart, must be a result of hypertension. Thus, the Board finds that the medical literature is of little probative value in this case. While the Veteran believes his left side cardiomyopathy is proximately due to or the result of or aggravated beyond its natural progression by his service-connected disabilities of obstructive sleep apnea and hypertension, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board ultimately assigns greater probative weight to the medical evidence of record, to include opinions rendered by trained medical professionals based on appropriate diagnostic testing and reasonably drawn conclusions with supportive rationale In summary, the preponderance of the evidence is against a finding that the Veteran has a current heart disability that was caused or aggravated by service or a service-connected disability. Thus, the claim for service connection is denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for anterior compartment syndrome, left lower extremity is remanded. 2. Entitlement to a rating in excess of 10 percent for anterior compartment syndrome, right lower extremity is remanded. The Veteran is also service connected for anterior compartment syndrome, diagnosed in service as shin splints, separately rated as 10 percent for each lower extremity. He seeks a higher rating for each lower extremity for symptoms such as numbness and tingling, burning pain, and tightness in the lateral calf that limit his everyday functioning in such areas as walking. The Veteran has had two VA examinations, in February 2014 and July 2016. In the latter examination, the VA examiner noted the Veteran’s neurological symptoms such as numbness and tingling and burning pain are less likely due to the anterior compartment syndrome. Instead, he attributed these symptoms to L5-S1 nerve root changes causing radiculopathy in the lower extremities. He based his conclusion on an April 2016 EMG/NCS, which found evidence of L5-S1 changes but no evidence of peripheral neuropathy. The Veteran points out that he has suffered his compartment symptoms for over 30 years and that the symptoms of the more recently diagnosed radiculopathy result in different symptoms. Furthermore, more recent treatment notes in July and December 2017 indicate that the Veteran now has been diagnosed with both early mild neuropathy and L5 sciatica with separate symptoms. In light of above, the Board concludes that the Veteran should be afforded a new VA examination to determine the current nature, manifestations and severity of his bilateral anterior compartment syndrome. Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA’s duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination). Before the examination ongoing VAMC or private medical records should also be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his anterior compartment syndrome claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his anterior compartment syndrome in the left leg and anterior compartment syndrome in the right leg. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. The examiner should specifically comment on the Veteran’s complaints of numbness and tingling and burning pain and their relationship to his anterior compartment syndrome, taking into consideration that the Veteran is competent to report he has experienced these symptoms for over 30 years and he has recently been diagnosed with both peripheral neuropathy of the lower extremities and L5-S1 radiculopathy (sciatica). 3. After the development requested is completed, readjudicate the claims for service connection. If any benefit sought remains denied, furnish the Veteran and his attorney with a supplemental statement of the case, and provide a reasonable period to respond. Then, return the case to the Board for further appellate review, if necessary. K. M. SCHAEFER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel