Citation Nr: 21075068 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-50 208A DATE: December 17, 2021 ORDER Entitlement to service connection for a heart condition characterized as atrial fibrillation as secondary to posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial compensable rating for residuals of kidney cancer in remission, status post partial left nephrectomy is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his atrial fibrillation is aggravated by the Veteran's service-connected PTSD. CONCLUSION OF LAW The criteria for entitlement to service connection for atrial fibrillation are met. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1137, 5107, 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.307, 3.309(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from December 1975 to December 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decisions dated in May 2016 and October 2017. Service Connection Entitlement to service connection for a heart condition The Veteran seeks service connection for atrial fibrillation, which he asserts is related to his service-connected PTSD. The Veteran asserts that when he would start feeling stressed or when he had flashbacks of the traumatic events he witnessed in service, he would feel his heartbeat faster and he would experience pain in his chest, as well as dizziness and numbness. See April 2017 Notice of Disagreement (NOD); October 2017 and November 2017 Form 9 (Substantive Appeals); September 2021 Hearing Transcript. Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. The Board has carefully reviewed the evidence of record and finds that the Veteran's atrial fibrillation is etiologically associated with his service-connected PTSD. Thus, resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for atrial fibrillation as secondary to the Veteran's service-connected PTSD have been met. See 38 C.F.R. § 3.310. At the outset, the Board notes that the Veteran established service connection for PTSD in September 2012. The Board acknowledges the testimony and statements of the Veteran in support of his claim, and notes that lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds that the statements of the Veteran are competent and credible and support a finding that the Veteran would experience symptoms of increased heart rate, chest pain, dizziness, and numbness during periods of stress or flashbacks of the traumatic events he witnessed in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran does not assert, and the evidence does not demonstrate, that the Veteran's atrial fibrillation occurred during a period of qualifying service. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that there is a nexus between the Veteran's atrial fibrillation and his service-connected PTSD. In February 2017, a VA examiner opined that the Veteran's current heart condition was less likely as not proximately due to, the result of, or permanently worsened or aggravated by his PTSD. The examiner noted that the Veteran was initially diagnosed with hypertension and hyperlipidemia in July 2011; and diagnosed with atrial fibrillation in November 2011. The examiner noted that atrial arrhythmias could be caused by damage to the conduction pathways in the heart due to underlying hypertensive heart disease and coronary heart disease. In addition, the examiner noted that venous thromboembolic disease, which included deep vein thrombosis and pulmonary embolism, was also associated with an increased risk of atrial fibrillation. The examiner also noted that secondary precipitants included acute alcohol consumption, thyrotoxicosis, acute pericardial disease, acute pulmonary embolism, and other acute pulmonary pathology. The examiner noted that mental health conditions including PTSD, had not been established as risk factors for the development of atrial fibrillation/atrial conduction disorder. In October 2017, the Veteran submitted a statement from his VA treatment provider, which indicated that he had been treating the Veteran since 2012. The treatment provider noted that there had been strong associations with mental stress, including PTSD and exacerbation of atrial arrhythmias. In January 2018, a VA examiner opined that the Veteran's atrial fibrillation was less likely than not proximately due to or the result of his service-connected PTSD; and the Veteran's atrial fibrillation was less likely than not aggravated beyond its natural progression by his service-connected PTSD. The examiner noted that the Veteran's medical records established that the Veteran has severe structural heart disease, as evidenced by pan conduction disease and bilateral atrial enlargement resulting in atrial fibrillation; and noted that the significance of the organic disease was great and was well established in the records. The examiner noted that although the medical literature identified associations of atrial fibrillation from disorders of mental illness such as PTSD, depression, and anxiety, this association was not demonstrated to be causal in the presence of organic heart disease; and the association was not demonstrated to be sufficiently aggravating to result in the development of organic structural heart disease such as was present in this Veteran. Thus, the examiner opined that it was more likely than not that the Veteran's atrial fibrillation was the result of natural progression and less likely than not that his PTSD aggravated his heart disease beyond its natural progression. The January 2018 VA examiner applied the incorrect standard for aggravation when they provided the medical opinion as to whether the Veteran's atrial fibrillation had been aggravated by his service-connected PTSD. The United States Court of Appeals for Veterans Claims (Court) has explained that, "any increase in disability" is the standard to be used. See Allen v. Brown, 7 Vet. App. 445, 448-449 (1995). The aggravation prong of secondary service connection requires a worsening of the claimed disability, not a permanent worsening of the claimed disability. Ward v. Wilkie, 31 Vet. App. 233 (2019). Thus, "aggravation" of a disability for purposes of 38 C.F.R. § 3.310 does not require a permanent" worsening of a condition and can be satisfied by showing an incremental increase in disability. Id. Moreover, nor does the aggravation prong of secondary service connection require that the Veteran's service-connected disability result in the development of the claimed disability. The Board notes that although the January 2018 VA examiner opined that it was less likely as not that the Veteran's service-connected PTSD resulted in the development of organic structural heart disease, the Board finds that the January 2018 VA opinion coupled with the other medical evidence of record including the October 2017 VA treatment provider's opinion and the lay evidence of record, supports a conclusion that service connection for atrial fibrillation is warranted. Notably, the January 2018 VA opinion indicates that although the Veteran's PTSD was not sufficiently aggravating to result in the development of an organic structural heart disease, such as is present in the Veteran, the Veteran's PTSD does result in some aggravation. See Allen, supra; Ward, supra. The Board essentially finds that the evidence is in equipoise as to whether there is any incremental increase in the Veteran's cardiac disease attributable to the service-connected PTSD disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. See Ward v. Wilkie, supra; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (indicating an "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology). "Congress has not mandated that a medical principal must have reached the level of scientific consensus to support a claim for veterans benefits." Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). Instead, Congress adopted a "low standard of proof" for VA to employ to "resolve a scientific or medical question in the claimant's favor so long as the evidence for and against that question is in 'approximate balance.'" Id. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. Resolving all reasonable doubt in favor of the Veteran and based on the medical and lay evidence of record, the Board finds that the evidence of record supports a finding that service connection for atrial fibrillation is warranted. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an initial compensable rating for residuals of kidney cancer is remanded. The Veteran seeks a compensable rating for the residuals of kidney cancer. The Veteran asserts that he has had difficulty voiding since his operation. He noticed that his voiding would come out in dribbles; and he would get up to use the bathroom 4 to 6 times a night and 8 to 10 times during the day. See October 2017 and October 2018 NODs; January 2018 Correspondence; March 2018 Substantive Appeal. In addition, VA treatment records reflect that the Veteran has repeatedly complained of urinary hesitancy and nocturia. See January 2017, August 2017, October 2017, September 2019, and April 2020 VA treatment records. Pursuant to Diagnostic Code 7528, malignant neoplasms of the genitourinary system maybe rated based upon residuals as either a voiding dysfunction or renal dysfunction, whichever is predominant. See 38 C.F.R. § 4.115b. The Veteran has been afforded VA examinations in August 2017 and May 2019; however, no VA examiner has adequately addressed whether the Veteran's residuals of kidney cancer also include a voiding dysfunction as recently claimed by the Veteran. Thus, the Board finds that a VA examination is warranted to determine the current severity of the residuals of the Veteran's kidney cancer. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of the residuals of the Veteran's kidney cancer. The record must be made available to the examiner for review, including a copy of this Remand, and the examiner should indicate that the record was reviewed in connection with the examination. The examiner should attempt to elicit information regarding the severity, frequency, and duration of symptoms; and provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria for a renal dysfunction and a voiding dysfunction. In rendering the opinions, the examiner must consider and discuss the statements of the Veteran regarding the severity of the symptoms of the residuals of his kidney cancer. See October 2017 and October 2018 NOD; January 2018 Correspondence; March 2018 Substantive Appeal. In addition, the examiner must consider and discuss the VA treatment records which reflect complaints of urinary hesitancy and nocturia. See January 2017, August 2017, October 2017, September 2019, and April 2020 VA treatment records. (Continued on the next page) The examiner should provide a complete rationale for all opinions expressed and conclusions reached, including a discussion of the facts and medical principles involved. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Johnson 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.