Citation Nr: A19002042 Decision Date: 10/17/19 Archive Date: 10/17/19 DOCKET NO. 190502-8846 DATE: October 17, 2019 REMANDED Entitlement to service connection for atrial fibrillation disability is remanded. REASONS FOR REMAND The Veteran served in the Air Force from March 2002, to September 2004 and from April 2007, to October 2007. The Veteran also has additional periods of reserve service with intermittent dates of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision issued by the Department of Veterans Affairs (VA) regional office (RO). The Veterans Benefits Administration (VBA) is the agency of original jurisdiction (AOJ) for this appeal. In a December 2017 rating decision, the AOJ determined that new and material evidence had not been submitted to reopen a previously disallowed claim for service connection for atrial fibrillation. n September 2018, the Veteran opted into the Rapid Appeals Modernization Program (RAMP) and elected to have his claim processed in a higher-level review process. In February 2019, the RO issued a RAMP rating decision. In that decision, the RO stated that the evidence submitted was new and relevant and reconsidered the claim. However, the previous denial of service connection for atrial fibrillation was continued. Notice of this decision was sent in a correspondence to the Veteran on February 14, 2019. This decision has been written consistent with the new AMA framework. In May 2019, the Veteran submitted a VA Form 10182 requesting Direct Review of the February 2019 decision by the Board. The new and material evidence issue regarding atrial fibrillation disability has been recharacterized to reflect the new evidentiary standard under the AMA. Pub. L. No. 115-55, § 5108, 131 Stat. 1105, 1109. In the February 2019 RAMP decision, the agency of original jurisdiction (AOJ) determined that new and relevant evidence was received to warrant re-adjudicating the claim for service connection for atrial fibrillation. The Board is bound by this favorable finding. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. As such, the Board needs not adjudicate the reopening of the claim again and may proceed to the merits of the service connection claim. The AOJ also found that the Veteran has a current diagnosis of atrial fibrillation. The Board is also bound by this favorable finding. Id. Entitlement to service connection for atrial fibrillation is remanded. Generally, establishing service connection requires medical, or in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). The Board notes that a veteran is "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101 (2) (West 2014); 38 C.F.R. § 3.1 (d) (2016). The term "active military, naval, or air service" includes the following: active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA; or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty while performing INACDUTRA, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a) (2016). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). INACDUTRA is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). The issue of entitlement to service connection for atrial fibrillation is remanded to correct the duty to assist errors that occurred prior to the February 2019 AOJ rating decision. Here, the Veteran's military personnel records, to include Certificates of Release or Discharge from Active Duty (DD Form 214), indicate that the Veteran served on active duty from May 1983 to August 1984 and from March 2003 to May 2003, and has additional service in the Air Force Reserves. The Veteran has asserted that he was diagnosed with atrial fibrillation on February 5, 2011 while participating in a drill weekend in preparation of active duty the following weekend. He further asserted that he was in a Reserve Military Training Status when the incident occurred and was transported from Duke Field FL to Eglin AFB ER on the same day. See June 2018 NOD. See also May 2019 VA 21-4138 (Statement in Support of Claim. The Veteran has also reported that in November 2011, he was evaluated in the ER for cardiac complaint similar to his prior episode of A-Fib. He also had a follow up evaluation in December 2011 and saw a Cardiologist in January 2012. He reported that he had to undergo a surgical procedure to alleviate his symptoms. See VA 21-4138 (statement in support of case). Thus, the Board finds that the Veteran's claim rests on whether his initial episode in February 2011was due to an injury that occurred during a period of INACDUTRA or whether his disability was aggravated during a period of active service. See 38 U.S.C. § 1153. If the Veteran was on INACDUTRA when the atrial fibrillation was identified, service connection may be warranted if the disability was related to an injury sustained during the period of INACDUTRA. In this regard, service connection would be permitted for injuries, myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training, but not diseases. 38 U.S.C. § 101 (24)(C), 1110. In March 2014, a VA examiner opined that the Veteran's claimed atrial fibrillation which clearly existed prior to service, is less likely as not caused by, or a result of, or aggravated by his most recent period of active duty. He further stated that there are no noted aggravations of the Veteran’s atrial fibrillation beyond its natural progression during his most recent period of active duty. The examiner’s rationale was that there are no evidence/findings in the treatment record indicating any progression of the Veteran's condition during his most recent period of active duty. See March 2014 C&P Exam. The Board finds this opinion inadequate because the examiner did not explain whether the atrial fibrillation identified February 5, 2011 was due to an injury or was the result of a disease process. In the August 2017 Private Medical opinion, the examiner opined that it is at least likely as not (50/50 probability) that the Veteran’s sleep apnea and depression sustained in the military contributed to his claimed atrial fibrillation and subsequent cardiac ablation in 2014. This examination is also inadequate because it lacks a detailed rationale. Moreover, the Veteran is not service connected for either sleep apnea and depression. Therefore, service connection on a secondary basis is not warranted. See 38 C.F.R. § 3.310. Thereafter, the AOJ should obtain a medical opinion that adequately addresses whether the Veteran’s claimed atrial fibrillation disability resulted from an injury incurred during a period of INACDUTRA or whether it was aggravated while he served on a subsequent period of active duty. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician. The Veteran’s claims file should be made available to and be reviewed by the reporting clinician, and he or she must indicate whether such review was accomplished. The examiner should render an opinion in response to the following inquiry: Is it at least as likely as not (50 percent probability) of greater) that the Veteran's February 2011 atrial fibrillation disability was due to a disease or an injury; and whether such condition is it is comparable to a myocardial infarction, cardiac arrest, or cerebrovascular accident. The opinion provider should provide a rationale for the opinion reached. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report, which must reflect the reporting clinician's consideration and analysis of both the medical and lay evidence of record. Please note that a clinician's report that (s)he cannot provide an opinion without resort to speculation is inadequate unless the clinician provides a rationale for that statement. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.