Citation Nr: 20020249 Decision Date: 03/19/20 Archive Date: 03/19/20 DOCKET NO. 10-36 299 DATE: March 19, 2020 ORDER Entitlement to service connection for heart condition, to include rheumatic valvulitis, is denied. FINDINGS OF FACT 1. The Veteran’s rheumatic valvulitis clearly and unmistakably preexisted his entry into service. 2. The Veteran’s preexisting rheumatic valvulitis clearly and unmistakably was not aggravated by service. 3. The Veteran’s current heart disorders are not attributable to his rheumatic valvulitis. CONCLUSION OF LAW The criteria for service connection for heart condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from August 1952 to December 1952. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2013 the Veteran appeared at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript of the hearing is of record. Subsequently, the Veteran’s claim was remanded by the Board for additional development in May 2013. The Board subsequently denied the claim in an April 2014 decision. The Veteran appealed the Board’s April 2014 decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2014 Order, the Court granted a Joint Motion for Remand (JMR) vacating the Board’s April 2014 decision and remanded the matter for action consistent with the terms of the joint motion. Thereafter, the Veteran’s claim was remanded by the Board in January 2015 and July 2015. Subsequently, the Board denied the Veteran’s claim in a January 2016 decision. The Veteran appealed the Board’s January 2016 decision to the Court. In a September 2017 Memorandum Decision, the Court set aside the January 2016 Board decision and remanded the appeal for further consideration consistent with the Court’s decision. Thereafter, the Veteran was provided with an opportunity to appear at a hearing before a different VLJ as the VLJ who conducted the April 2013 hearing is no longer with the Board. He requested a new hearing and such hearing was conducted by the undersigned in August 2018. A transcript of the hearing is of record. Subsequently, the Board remanded the Veteran’s claim in February 2019 and October 2019 to obtain medical opinions. The Veteran’s appeal is now again before the Board for adjudication. Entitlement to service connection for a heart condition, to include rheumatic valvulitis, is denied. The Veteran and his representative contend the Veteran is entitled to service connection for a heart condition, to include rheumatic valvulitis, as he never had heart problems prior to military service and that the onset of his heart problems occurred during his military service. See Post-Remand Brief, dated January 31, 2020; Board Hearing Transcript, dated August 6, 2018. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardio-vascular renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In the instant case, however, there is no presumed service connection because the evidence does not show that cardio-vascular renal disease was manifested to a compensable degree within one year of discharge from service. In the absence of the foregoing, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: “(1) the existence of a present disability; (2) 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the “burden is not on the claimant to show that his disability increased in severity.” To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231 (2012). 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). In this case, there is a question as to whether the Veteran’s rheumatic valvulitis preexisted his military service from August 1952 to December 1952. The appellant established “veteran” status based on his period of active duty service from August 1952 to December 1952. The Veteran’s service treatment records include a March 1952 induction examination that included normal findings as to the heart. However, no specific medical examination was conducted precisely contemporaneous with the Veteran’s formal entry into service in August 1952. Therefore, with respect to rheumatic valvulitis, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran’s entrance examination has been lost or destroyed while in VA custody)). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran’s rheumatic valvulitis preexisted service. The Veteran’s service personnel records include an Abstract of Clinical Records, which indicated that during a routine examination in October 1952, a systolic murmur was heard in the Veteran’s heart. He denied a history of rheumatic fever or its components or a history of heart disease. The Veteran also denied a history of previous murmur or any current cardiac symptoms. On examination, there was no cardiac enlargement and heart tones were normal, but there was a soft, blowing systolic murmur in the mitral area that was fairly well transmitted to the axilla but not to the back. An electrocardiogram was within normal limits, but a chest X-ray showed deformity of the left eighth rib that was consistent with an old gunshot wound in the left axilla. The heart itself was within normal limits of size, shape, and position. After consultation with the Chief of the Medical Service, military medical professionals concluded that the Veteran had rheumatic valvulitis, inactive, which preceded his entry into service and was not aggravated by his short tour of duty. It was recommended that the Veteran be medically separated from service. In addition, following the September 2017 Memorandum Decision, the Board remanded the Veteran’s claim to obtain a medical opinion as to whether it is clear and unmistakable that the Veteran’s rheumatic valvulitis preexisted his military service. The VA examiner who conducted an examination of the Veteran in March 2015 provided additional opinions in June 2019 and October 2019. Following the June 2019 VA opinion, which the Board deemed to be inadequate due to the incorrect standard of proof being used, the VA examiner provided an additional opinion in October 2019. The VA examiner opined that it is clear and unmistakable that the Veteran’s rheumatic valvulitis preexisted his military service. In support of the opinion, the examiner stated that the Veteran’s DD 214 showed that the Veteran enlisted with the active military in August 1952, was medically disqualified from service, the heart condition preexisted service, and it was not aggravated by service. Moreover, the VA examiner noted that the Veteran’s November 1952 separation physical showed that the Veteran was noted to have rheumatic valvulitis that was found to be inactive. In addition, in March 2015, the VA examiner opined following a March 2015 examination of the Veteran that it is clear and unmistakable that the Veteran’s rheumatic valvulitis preexisted service. In reaching that conclusion, the VA examiner extensively discussed the Veteran’s in-service and post-service medical records and his overall contentions. The examiner specifically noted that the Veteran’s rheumatic valvulitis was found to have preexisted service at the time of his separation from service. In addition, the November 1952 examination report at separation reflects that the Veteran’s rheumatic valvulitis was inactive. Finally, the examiner concluded, “[m]edical literature supports that acute rheumatic valvulitis is associated with migratory arthritis, erythema marginatum, Sydenham’s chorea, subcutaneous nodules, arthralgia, fever. There is no documentation of any of the above and thus the veteran’s valvulitis was noted as inactive. Medical literature supports that ‘inactive’ rheumatic valvulitis occurs years after acute valvulitis and cannot occur in the 3 months and 11 days-time frame of the veteran’s active military service.” These opinions provide a thorough rationale and unequivocally conclude that the Veteran’s rheumatic valvulitis, diagnosed in October 1952 during service, preexisted service. The Board acknowledges the Veteran’s contentions that he did not experience heart problems prior to his entry into service. See Board Hearing Transcripts, dated April 18, 2013 and August 6, 2018. The Veteran is competent to report the absence of any heart symptoms prior to service, but such assertions do not address whether a heart disability existed prior to his military service. As to any implicit or explicit contentions of the Veteran that his rheumatic valvulitis had its onset during service, the Board finds that given the complexity of diagnosing rheumatic valvulitis, such contentions fall outside the realm of common knowledge of a layperson and are of no probative value. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); cf. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In summary, given the consistent and probative medical evidence concluding that the rheumatic valvulitis diagnosed in October 1952 preexisted service and the absence of any competent evidence to the contrary, the Board finds that there is clear and unmistakable evidence of record that the Veteran’s rheumatic valvulitis preexisted service. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). The Board notes that the presumption of soundness on entrance cannot be overcome simply based on the representations of the Veteran of a vague past history during the entrance examination or thereafter. See Miller v. West, 11 Vet. App. 345, 348 (1998) (holding that a veteran’s self-report that he had previously suffered from “depression or excessive worry” prior to service was insufficient to rebut the presumption of soundness as was found in 38 U.S.C. § 1111); see also Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this case, however, as discussed above there is medical evidence supported by a rationale which clearly and unmistakably shows that the disorder preexisted service. In its September 2017 Memorandum Decision, the Court found that a remand was warranted for the Board to provide an adequate statement of reasons and bases, specifically with regard to the Board’s reliance on the March 2015 VA examiner’s opinion as to the second prong of the presumption of soundness, the presumption of aggravation. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In this case, there is clear and unmistakable evidence establishing that the Veteran’s rheumatic valvulitis was not aggravated by service beyond the natural progression of the disease. Following the September 2017 Memorandum Decision, the Board remanded the Veteran’s claim to obtain a medical opinion as to whether it is clear and unmistakable that the Veteran’s rheumatic valvulitis did not permanently increase in severity beyond the natural progression of the disability during active service. The VA examiner who conducted an examination of the Veteran in March 2015 provided additional opinions in June 2019 and October 2019. Following the June 2019 VA opinion, which the Board deemed to be inadequate due to the incorrect standard of proof being used, the VA examiner provided an additional opinion in October 2019. The VA examiner opined that it is clear and unmistakable that the Veteran’s rheumatic valvulitis did not permanently increase in severity beyond the natural progression of the disability during active service. In support of the opinion, the VA examiner noted that there is no documentation in the service medical record to support any complaints or treatment of rheumatic valvulitis during the Veteran’s service. Furthermore, the examiner noted there is no documentation to support that the Veteran was being treated for rheumatic valvulitis in the years following service. In addition, the examiner noted that a December 2009 echocardiogram showed only “mitral regurgitation: trivial” and explained that such a finding is normal and does not show the presence of a valvular heart disease. It is also noted that there is no diagnosis of rheumatic valvulitis after service, to include at VA examinations in December 2009 and March 2015. As is noted above, the underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. In this case, while the Veteran did report shortness of breath and ultimately was diagnosed with rheumatic valvulitis in service, the VA examiner in October 2019 explained that the medical findings at that time and the evidence after service made it clear and unmistakable that rheumatic valvulitis was not aggravated during service. Moreover, multiple medical professionals have examined the Veteran’s heart, but have not diagnosed or otherwise found evidence of current rheumatic valvulitis. Thus, the evidence of record clearly and unmistakably shows that a permanent aggravation of a preexisting rheumatic valvulitis disability did not occur. See Jensen, 4 Vet. App. at 306-07; Green, 1 Vet. App. at 323; Hunt, 1 Vet. App. at 297. Thus, the only evidence that the Veteran’s rheumatic valvulitis and associated problems began in or were otherwise permanently aggravated by service is the Veteran’s own lay assertions. To the extent that the Veteran contends such symptoms permanently worsened due to service, the Board does not find such representations of any probative value in light of the Veteran’s lack of medical training and expertise and the complexity of attributing any observed symptomatology to a specific heart disorder or to the permanent aggravation of that disorder. See Jandreau, 492 F.3d at 1377. The Board acknowledges the Veteran’s representative’s January 2020 contention that the October 2019 VA opinion is inadequate as the examiner was “not shown to have any particular expertise, experience, training, or competence in commenting on Cardiovascular disorders.” See Post-Remand Brief, dated January 31, 2020. In regard to the Veteran’s claim for service connection for a heart condition, a VA examiner most recently provided an opinion in October 2019. The examiner who provided the opinion conducted an examination of the Veteran in March 2015. Both the examination and the October 2019 opinion comply with VA policy as the examiner conducted the necessary testing to sufficiently evaluate the Veteran’s heart disability. The examiner is also noted to be a physician. The Veteran’s representative has not made any specific arguments regarding why the physician that completed the examination and provided the October 2019 opinion would not be competent to evaluate the Veteran’s heart condition. Both the Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held that the Board is entitled to presume the competence of a VA examiner and specific challenges to a VA examiner’s competency must be raised by the appellant to overcome this presumption. See Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); see also Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (citing Hilkert v. West, 12 Vet. App. 145, 151 (1999)). The Veteran’s representative has not met the burden of demonstrating incompetency of the VA examiner who provided opinions in March 2015 and October 2019. The representative has offered no argument as to how the physician would be unable to provide the information necessary to evaluate the etiology of the Veteran’s heart condition. Accordingly, the Board finds that the examination, and the October 2019 opinion as discussed above, as a whole are adequate and contain sufficient information to decide the issue on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s rheumatic valvulitis preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based on the direct theory of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As to any other heart or related disability, the evidence of record does not establish that such disability preexisted military service, had its onset in service or within one year of separation from service, or is otherwise related to service. In order to warrant service connection, the threshold requirement is competent medical evidence of the existence of the claimed disability at some point during a veteran’s appeal. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim”); Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). As to the Veteran’s claimed atrial fibrillation, the Board recognizes that the Veteran has a reported history of atrial fibrillation, but the December 2009 and March 2015 VA examiners found no evidence in the record to support a diagnosis of atrial fibrillation and no medical records during the claim period, or in proximity thereto, include a current diagnosis of atrial fibrillation. The December 2009 VA examiner discussed the confusion in the records from 1999 to 2002, when the Veteran was prescribed heart medication, but that there was no evidence of atrial fibrillation diagnosed at that time. In addition, the March 2015 VA examiner noted the documentation of “remote atrial fibrillation,” but observed that the medical records did not support this finding and noted that several echocardiogram results of record did not show any evidence of atrial fibrillation. In light of the foregoing, the Board finds that the preponderance of the evidence of record is against finding that the Veteran has a diagnosis of atrial fibrillation at any time during the claim period or in proximity thereto. In addition, in an October 2019 opinion, the March 2015 VA examiner restated her opinion that it is less likely than not that the Veteran has a current heart disorder that is attributable to the disease manifested in service. In support of the opinion, the VA examiner noted that the December 2009 echocardiogram showed no evidence of valvular heart disease, and that the Veteran’s 2015 stress test was normal. Furthermore, the examiner noted the diagnoses of hypertension with mild left ventricular hypertrophy and trivial mitral regurgitation, but these diagnoses are not caused by the rheumatic heart disease noted in service. She further explained that trivial mitral regurgitation is a normal finding and seen in many individuals in the general population and is not related to the mitral valvulitis noted on the induction physical. In addition, the VA examiner explained that the heart murmur noted in an October 2018 VA treatment record, and again noted in October 2019, is a functional murmur, and there is no echocardiographic evidence to support any rheumatic valvular heart disease. The Board also has considered the findings of the December 2009 VA examination report diagnosing hypertension, mitral valve regurgitation, and pulmonary hypertension. That said, the examiner also concluded that these disabilities were not caused by rheumatic heart disease from 1952, as the objective findings from diagnostic testing showed no heart condition related to rheumatic heart disease. Although not explicitly stated, the clear intent of the examiner was to opine that the current heart problems were unrelated to any incident of service, including the diagnosed rheumatic valvulitis. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein) (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293-294 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)). The March 2015 VA examination report also addressed the Veteran’s documented mitral valve regurgitation, concluding that it was less likely than not related to military service. The examiner stated that the mitral regurgitation seen in 2009 was trivial and that it was commonly found in many normal hearts. While the examiner did note that echocardiogram in December 2009 showed evidence of mild left ventricular hypertrophy, he also noted that such was due to hypertension. Ultimately, the examiner determined that there was no current objective evidence of rheumatic valvulitis or other heart condition. With regard to hypertension, the Board notes that there is no assertion or indication in the record that hypertension may have been incurred in service. In light of the foregoing, the Board finds the December 2009 and March 2015 VA medical examination reports and the October 2019 opinion to be the most probative evidence of record with respect to the etiology and/or existence of the above disorders. The Board has considered the Veteran’s assertions that his current heart problems are due to his military service. Certainly, the Veteran can attest to factual matters of which he has first-hand knowledge, such as subjective complaints of heart palpitations and shortness of breath, and his assertions in that regard are entitled to probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, determining the diagnosis and etiology of heart problems that were first discussed multiple years after separation from service and attempting to link such problems to a wholly separate heart condition noted in service, but not present currently, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377; see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because the matter required medical expertise). Finally, the Board has considered the Veteran’s representations that one or more medical professionals have told him that his current heart problems were incurred in military service. See Board Hearing Transcript, dated April 18, 2013. Even assuming the accuracy of these representations, in the absence of any stated rationale for the opinions expressed or indication as to the basis or bases of the conclusions, the Board affords far greater probative weight to the well-reasoned and supported conclusions expressed in the VA medical examination reports of record. In summary, the credible and probative evidence of record clearly and unmistakably establishes both that the Veteran’s rheumatic valvulitis diagnosed in October 1952 preexisted service and was not aggravated by service. Furthermore,   the preponderance of the evidence is also against a finding that any other current heart or related disability is related to his military service. Thus, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, 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.