Citation Nr: 21069772 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-43 950 DATE: November 19, 2021 ORDER Entitlement to service connection for cardiomyopathy is granted. REMANDED Entitlement to an effective date prior to September 25, 2018 for the award of a 100 percent disability rating for coronary artery disease (CAD) to include congestive heart failure and implanted automatic implantable cardioverter defibrillator (AICD) is remanded. FINDING OF FACT The evidence is at least in relative equipoise as to whether the Veteran's current cardiomyopathy is secondary to his service-connected CAD to include congestive heart failure and implanted AICD. CONCLUSION OF LAW The criteria for service connection for cardiomyopathy have been met. 38 U.S.C. §§ 1110, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to September 1969. These matters come before the Board of Veterans' Appeals (Board) from rating decisions dated August 2016 and November 2018 of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. 1. Entitlement to service connection for cardiomyopathy, claimed as a heart condition, to include as due to exposure to herbicides, is granted. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). With regard to the matter of establishing service connection for a disability on a secondary basis, the United States Court of Appeals for Veterans Claims (Court) has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A June 2016 VA examiner opined that the Veteran has non-ischemic cardiomyopathy and although the exact etiology of this condition had not been established, it was definitely not secondary to CAD/ischemic heart disease (IHD) as evidenced by the cardiac catheterization of April 2015. He has minimal CAD (amount expected for his age), but he does not have IHD. His METS score is based solely on his non-ischemic cardiomyopathy. In a March 2018 addendum, the examiner clarified that the Veteran's chronic congestive heart failure was not due to CAD because he had minimal CAD and no IHD. VA treatment records show that the Veteran had an AICD placement in October 2016. In June 2020, a VA physician, who reviewed the Veteran's claims file, provided an opinion that the Veteran had AICD placement secondary to cardiomyopathy caused by CAD; and that the AICD was at least as likely as not implanted due to the Veteran's service-connected CAD. In short, the June 2020 opinion from a VA physician provided a favorable nexus opinion by saying that the Veteran's cardiomyopathy was caused by his service-connected CAD. While the evidence contains conflicting opinions as to the etiology of the Veteran's cardiomyopathy, the Board finds that the evidence is at least in equipoise as to whether the Veteran's cardiomyopathy is proximately due to, or the result of, the Veteran's service-connected CAD. In cases such as these, the benefit-of-the-doubt rule, codified at 38 U.S.C. § 5107, provides that VA shall consider all information and lay and medical evidence, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. The implementing regulation at 38 C.F.R. § 3.102 restates the provision in terms of "reasonable doubt." Evidence is in "approximate balance" when the evidence in favor or and opposing the veteran's claim is found to be almost exactly or nearly equal. The statutory benefit of the doubt rule applies when the factfinder determines that the positive and negative evidence relating to a veteran's claim are "nearly equal," thus rendering any determination on the merits "too close to call." Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The evidence favoring and against the claims is in approximate balance and therefore the claim will be granted. The present decision is based on the record in this appeal and carries no precedential weight as to any other pending cases. C.F.R. § 20.1303. REASONS FOR REMAND 1. Entitlement to an effective date prior to September 25, 2018 for the award of a 100 percent disability rating for CAD to include congestive heart failure and implanted AICD is remanded. In light of decision herein to grant service connection for cardiomyopathy, the Board finds that the issue of entitlement to an earlier effective date prior to September 25, 2018, for the grant of 100 percent rating for service-connected CAD must be remanded, as it is intertwined with the initial rating to be assigned for service-connected cardiomyopathy. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matter is REMANDED for the following action: After implementing the grant of service connection for cardiomyopathy and assign an initial rating and an effective date for cardiomyopathy, readjudicate the issue of entitlement to an effective date prior to September 25, 2018 for the award of a 100 percent disability rating for CAD to include congestive heart failure and implanted AICD. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.