Citation Nr: 21068361 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-04 718 DATE: November 10, 2021 REMANDED Entitlement to service connection for a heart condition other than heart mitral valve prolapse is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Army Reserve, with periods of active duty for training (ACDUTRA) from October 1983 to March 1984, from May 1984 to June 1984, in August 1985, from May 1986 to June 1986, in September 1986, in April 1987, from June 1987 to July 1987, from October 1987 to July 1989. These matters come to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The issue on appeal were previously before the Board in September 2018, when they were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. In the September 2018 remand, the Board directed the AOJ to verify all of the Veteran's periods of ACDUTRA and INACDUTRA service with the Army Reserve and to obtain all records of her Army Reserve service, including requesting such records from the National Personnel Records Center (NPRC). The claims file reflects that the AOJ requested the Veteran's records and associated all available evidence with the claims file. Therefore, there has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In June 2021, the Board again remanded the issues of entitlement to service connection for a heart condition, to include ventricular tachycardia, heart arrhythmia, premature atrial contractions, and productive premature ventricular contractions and entitlement to service connection for heart mitral valve prolapse for additional development. In an August 2021 rating decision, the RO granted service connection for heart mitral valve prolapse. As a result, this issue is no longer before the Board. The Board finds that more development is necessary prior to final adjudication of the claim on appeal. The appellant filed a claim for service connection that was received by VA in August 2014. The appellant contends that she is entitled to service connection for a heart condition to include ventricular tachycardia, heart arrhythmia, premature atrial contractions, and productive premature ventricular contractions as the conditions are due to or aggravated by her ACDUTRA service. When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA for service connection to be granted. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); Acciola, 22 Vet. App. at 324. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) apply to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to an appellant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved "veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In essence, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the appellant claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the appellant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "veteran" status, the claimant must demonstrate both elements of aggravation (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). See Donnellan, 24 Vet. App. 167. In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 (a). The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. See Donnellan, 24 Vet. App. 167. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Id. Accordingly, the burden to establish incurrence or aggravation in service remains with the appellant. Per the June 2021 Board remand, the appellant underwent a VA examination in July 2021. The VA examiner found that the appellant had valvular heart disease and the Veteran's mitral valve prolapse was at least as likely as not incurred in or caused by the claimed in-service event, injury or illness. The examiner also opined that it was less likely than not that a heart disability other than mitral valve prolapse was incurred in or caused by the appellant's active-duty training as there was insufficient evidence to support that a heart condition was diagnosed during the appeal. As noted above, based on the July 2021 VA examination, an August 2021 rating decision granted service connection for heart mitral valve prolapse. However, the Board notes that while the July 2021 VA examiner found that the appellant did not have a current heart disability beside mitral valve prolapse, private treatment records have demonstrated current heart disabilities other than mitral valve prolapse during the appeal period. Notably, an April 2016 private treatment report provided a diagnosis of symptomatic tachycardia. As such, the Board notes that that the April 2016 diagnosis of symptomatic tachycardia could have served as a current disability for service connection during the period of the appeal the disability was present. See McClain v. Nicholson, 21 Vet. App. 319, 322-23 (2007) (the fact that a disability has resolved during the appeal period does not preclude a finding of service connection for the disability). Thus, even assuming the appellant's heart disability beside mitral valve prolapse resolved during the appeal period, service connection may be available for the portion of the appeal period when the disability was present. As a result, the Board finds that on remand, the VA examiner should also address the April 2016 private treatment report correspondence and indicate whether the April 2016 diagnosis of symptomatic tachycardia was caused or aggravated by her periods of active duty service. Accordingly, the Board finds that a VA addendum opinion is needed to determine whether the appellant had a current heart disability during any point of the appeal, and to provide an opinion as to whether any such condition was caused or aggravated by her periods of active duty service. The matters are REMANDED for the following action: 1. The appellant should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated her for the disability on appeal. After the appellant has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. After the development requested above has been completed to the extent possible, the claims file should be returned to the VA examiner that examined the appellant in July 2021. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. If the new examiner feels that an actual physical examination is necessary, such examination should be scheduled. After reviewing the record, the clinician should provide an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that any such heart condition (other than heart mitral valve prolapse) diagnosed during the period on appeal, was related to the appellant's ACDUTRA. In particular, the examiner should discuss whether any heart disability at least as likely as not had its onset during a period of ACDUTRA or, alternatively, if any heart condition pre-existed any period of ACDUTRA service. If the clinician finds that any heart condition did pre-exist a period of ACDUTRA service, the clinician should provide an opinion as to whether it is at least as likely as not that the condition was aggravated beyond its natural progression by her ACDUTRA service. This could potentially include an exacerbation due to physical training and drills which were a part of her ACDUTRA. The clinician should specifically discuss the April 2016 private treatment record which provided a diagnosis of symptomatic tachycardia. 2. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the appellant and her representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.