Citation Nr: A20007353 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190911-30220 DATE: April 30, 2020 ORDER Entitlement to service connection for cardiomyopathy is granted. REMANDED Entitlement to service connection for heart disease other than cardiomyopathy, to include as secondary to service-connected pulmonary tuberculosis as well as secondary to diabetes mellitus, hypertension, and sleep apnea, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected pulmonary tuberculosis, is remanded. Entitlement to service connection for diabetes, to include as secondary to service-connected pulmonary tuberculosis as well as secondary to heart disease and hypertension, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected pulmonary tuberculosis, is remanded. Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), another anxiety disorder, and a depressive disorder, is remanded. FINDING OF FACT The evidence is in equipoise as to whether the cardiomyopathy is related to the suggested cardiac enlargement noted in active service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for service connection for cardiomyopathy have been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. § 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1975 to September 1979. As an initial matter, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law, which will go into effect in February 2019, creates a new framework for veterans dissatisfied with the Department of Veterans Affairs (VA) decision on their claim to seek review. The Veteran had perfected an appeal of denials in a May 2011 rating decision of service connection for left ear hearing loss and PTSD and the reopening of claims of entitlement to service connection for sleep apnea, enlarged heart, hypertension, and diabetes. In May 2017, the Veteran testified at videoconference hearing held before a Veterans Law Judge and a transcript of that hearing has been associated with the electronic record. In February 2018, the Board reopened and remanded the claims of entitlement to service connection for left ear hearing loss, sleep apnea, heart disease, hypertension, and diabetes. The Board also remanded the issue of entitlement to service connection for an acquired psychiatric disorder. In August 2018, VA received notice that the Veteran chose to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). In choosing to participate in RAMP, he withdrew his appeal of the May 2011 rating decision. The Board is honoring his choice and, accordingly, this decision has been written consistent with the new AMA framework. The Veteran selected the higher-level review lane when he submitted the RAMP election form. In a January 2019 deferred rating decision, the agency of original jurisdiction (AOJ) determined that based on the directives of the Board’s remand, there had been a pre-decisional error in the earlier rating decision and ordered additional development for the Veteran’s claims. The AOJ then readjudicated the Veteran’s claim in an August 2019 RAMP rating decision. He timely appealed this RAMP rating decision to the Board and requested direct review, which is based on the evidence of record at the time of the August 2019 RAMP rating decision. In its February 2018 remand, the Board noted the theories of entitlement for service connection for heart disease included as secondary to service-connected tuberculosis as well as diabetes. The Board is granting service connection for cardiomyopathy and is remanding the claim of service connection for the remaining heart diseases. In an April 2018 statement, a private nurse opined that the sleep apnea caused congestive heart failure, ventricular arrythmias, and an implanted defibrillator. In a February 2019 VA heart examination report, an examiner opined that congestive heart failure, hypertensive heart disease, and an implanted pacemaker and defibrillator were due to hypertension and diabetes mellitus. In Schroeder v. West, 212 F.3d 1265, 1271 (Fed. Cir. 2000), the United States Court of Appeals for the Federal Circuit (the Federal Circuit) held that VA’s duty to assist attaches to the investigation of all possible causes of a current disability, including those unknown to the claimant. Pursuant to Schroeder, the Board will consider whether the heart diseases are secondary to sleep apnea and hypertension. 1. Entitlement to service connection for cardiomyopathy. Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1131. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). To establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis As for Hickson element (1), current disability, the AOJ in the August 2019 RAMP rating decision made a favorable finding that the Veteran has cardiomyopathy. With regard to Hickson element (2), in-service disease or injury, the Veteran’s service treatment records show that in July 1978 chest X-rays revealed that mild cardiac enlargement was suggested. A report of a January 1979 chest X-rays does not mention cardiac enlargement. In light of the findings from the July 1978 chest X-rays, Hickson element (2) is satisfied. As to Hickson element (3), medical nexus, a February 2019 VA examiner provided conflicting medical opinions. In the February 2019 VA heart disease examination report, the examiner noted that the date of diagnosis for cardiomyopathy was 1979. The examiner reviewed X-rays dated in 1978 and 1979. The examiner noted that the 1979 X-rays showed an enlarged heart. The Board again notes that the report of the July 1978 X-rays suggests mild cardiac enlargement and that the report of the January 1979 X-rays does not mention cardiac enlargement. In a February 2019 medical opinion, the examiner stated that it is less likely than not that the enlarged heart was incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that records show that the earliest mention of hypertension was in March 2009. The examiner added that the Veteran’s entrance examination report, periodic medical examination reports, and reports of medical history show that he was in good health early in service. The examiner added that his intrinsic endocrine system progressed naturally in a way that no single stressor or normalization can overcome. The Board notes that in the medical opinion report, the examiner did not address the in-service chest X-rays showing a suggested enlarged heart or the in-service elevated blood pressure readings for that matter. A February 1980 VA examination report reveals an area of precordial dullness, which appeared to be normal. The February 1980 examiner noted that there was no evidence of cardiomegaly on physical examination. Chest X-rays revealed a slight prominence of the left ventricle. The diagnosis was observation for cardiac enlargement, not found. Given the findings in the service treatment records and the February 1980 VA X-rays showing suggested mild cardiac enlargement and slight prominence of the left ventricle, respectively, coupled with the opinion in the February 2019 VA heart disease examination report, the evidence is in equipoise as to whether the cardiomyopathy is related to the suggested cardiac enlargement noted in active service. Service connection is in order for cardiomyopathy. 38 U.S.C. §§ 1110, 5107. The benefit sought on appeal is accordingly allowed. REASONS FOR REMAND The issues of entitlement to service connection for heart disease other than cardiomyopathy, hypertension, diabetes, sleep apnea, left ear hearing loss, and an acquired psychiatric disorder are remanded to correct a duty to assist error involving Social Security Administration records that occurred prior to the August 2019 rating decision on appeal. In a January 2011 statement, the Veteran reported that he was receiving Social Security disability benefits. These records should have been obtained. The issue of entitlement to service connection for sleep apnea is also remanded to correct a duty to assist error involving VA treatment records that occurred prior to the August 2019 rating decision on appeal. VA treatment records received prior to the August 2019 rating decision from the Memphis VA Medical Center reflect that he was treated at that facility in July 2015 for bronchitis. Given that these records are potentially relevant to this claim, these records should have been obtained. The Board further notes that prior to the August 2019 rating decision, the RO did not obtain records from the Memphis VA Medical Center and Jonesboro, Arkansas, VA community-based outpatient clinic for the period from March to August 2019. These records were, however, obtained subsequent to the August 2019 rating decision and, thus, will be available for post-remand review by the AOJ. The issues of entitlement to service connection for hypertension and heart disease other than cardiomyopathy are also remanded to correct a duty to assist error involving the February 2019 VA medical opinion. The February 2019 VA heart conditions report reveals that the examiner noted that hypertensive heart disease was diagnosed in 1980. In the February 2019 VA medical opinion report, the examiner noted that hypertension was diagnosed in 2009. The examiner opined that the hypertension and heart diseases were not related to active service. The examiner, however, did not address the in-service findings of a possible enlarged heart and elevated blood pressure readings. Therefore, an addendum to the medical opinion is necessary. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Memphis VA Medical Center for July 2015. 2. Obtain the Veteran’s federal records from the Social Security Administration regarding his claim for disability benefits. Document all requests for information as well as all responses in the claims file. 3. After the development in 1 and 2 is completed, the AOJ should arrange for the Veteran’s claims file to be reviewed by the February 2019 VA examiner for preparation of an addendum opinion. If the examiner is unavailable, arrange for the claims file to be reviewed by an appropriate clinician. The Veteran should only be scheduled for another examination if the February 2019 VA examiner or the new clinician deems it necessary. The medical professional must opine whether it is at least as likely as not that hypertension is related to an in-service injury, event, or disease, including the elevated blood pressure readings in service. The medical professional must opine on whether it is at least as likely as not that hypertension (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. For every heart disease other than cardiomyopathy, the medical professional must opine whether it is at least as likely as not that the heart disease is related to an in-service injury, event, or disease, including the in-service chest pain, the suspected enlarged heart found on chest X-rays in July 1978, and elevated blood pressure readings. For every heart disease other than cardiomyopathy, the medical professional must opine on whether it is at least as likely as not that the heart disease (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.