Citation Nr: 21008598 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-36 940 DATE: February 17, 2021 ORDER Service connection for a heart condition is denied. REMANDED Entitlement to service connection for a low back condition is remanded. FINDING OF FACT The weight of the evidence is against a finding that an irregular heartbeat has resulted in a heart disability. CONCLUSION OF LAW The criteria for service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 1958 to February 1962. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran and his wife testified at a videoconference hearing before the undersigned; a transcript of that hearing is of record. In March 2019, the Board remanded the Veteran’s appeal to the RO for further evidentiary development. Subsequently, a September 2020 rating decision granted entitlement to service connection for a left thumb injury with degenerative arthritis and painful motion. As this constitutes a full grant of the benefit sought on appeal in regard to the left thumb disability, there remains no issue of controversy for adjudication by the Board on that claim. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Entitlement to service connection for a heart condition The Veteran contends that he has a heart disability which warrants service connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Establishing entitlement to direct service connection generally requires: (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 - which is the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Turning to the evidence, the Veteran reported a rapid heartbeat during his active duty in November 1959. The Army clinician assessed a psychogenic cardiovascular reaction. There were no other complaints, diagnoses, or treatment of any heart-related condition during his service, and his December 1961 separation report of medical examination listed no heart problems. The Veteran’s VA treatment records and the private treatment records which are in evidence do not show any complaints, diagnosis, or treatment of a heart condition during the period on appeal. The VA treatment records which mention the Veteran’s heart rate indicate that it was a normal rate with normal sounds. Specifically, December 2011 VA treatment records reflect the Veteran had a normal sinus rhythm and normal heart sounds. March 2014 VA treatment records reflect that the Veteran’s heart had regular rate and rhythm, with no murmurs, gallops, or rubs, and normal S1 and S2 heart sounds. October 2019 VA treatment records reflect the Veteran’s heart had regular rate, rhythm, no murmurs, gallops, or rubs. It was also noted to have good effort tolerance. February 2020 VA treatment records also reflect that the heart had regular rate and rhythm. The Veteran denied chest pain. At the October 2018 hearing before the Board, the Veteran and his wife testified that they noticed that the Veteran’s heartbeat was irregular. The Veteran’s wife, who testified to doing alternative medicine and massage therapy, stated that she gave the Veteran basic homeopathic remedies and that the Veteran said that these remedies helped him. The Veteran said the heartbeat issue was not nearly as bad as it was before his spouse started helping him and that it did not occur that often anymore. The Veteran reported that he saw a physician at VA and that a private doctor, Dr. T., told him that he had fluttering of the heart. The Board remanded this claim in March 2019 and directed the RO to ask the Veteran to complete a VA Form 21-4142 for Dr. T. In October 2019, the RO sent the Veteran a letter mailing the forms to the Veteran and specifically requesting the form be completed for Dr. T. The Veteran did not complete the forms and return them to the RO as requested, and therefore the RO was unable to request the Veteran’s treatment records from Dr. T. There is no medical evidence of a heart condition, including an irregular heartbeat, in the VA treatment records or private treatment records which are in evidence. Based on the Veteran’s testimony, VA sent the Veteran a Form 21-4142 which would have allowed VA to request records from Dr. T., but the Veteran did not respond to this request. In pursuing a claim, a claimant has responsibility to cooperate in developing all facts pertinent to the claim; that is to say, VA’s duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). If the Veteran wishes help in developing his claim, he cannot passively wait for it in circumstances where he may or should have information that is essential in obtaining evidence. Id. The competent medical evidence of record indicates that during the period on appeal the Veteran’s heart rate has been noted to be normal. Moreover, the Veteran testified that he had not experienced the irregular heartbeat symptoms often in recent years. Therefore, no chronic disability related to irregular heartbeats has been shown during the period on appeal. The Veteran and his spouse testified to the Veteran having an irregular heartbeat and the Board acknowledges that the Veteran’s spouse indicated that she does alternative medicine; however, her exact qualifications to opine on medical matters are not clear from the record. Regardless, the Veteran’s irregular heartbeat has not been attributed to a clinical diagnosis or been shown to cause any impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). The medical evidence does not attribute any irregular heartbeat to a clinical diagnosis or indicate that an irregular heartbeat has resulted in any impairment of earning capacity. Without evidence of a clinical diagnosis of a chronic disability related to an irregular heartbeat or an indication that the irregular heartbeat results in functional impairment of earning capacity, the Board finds that the weight of the evidence is against the Veteran having a current disability for VA purposes, and the claim for service connection for a heart condition must therefore be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (disallowing service connection where there was no current disability). REASONS FOR REMAND Entitlement to service connection for a low back condition is remanded. This claim was remanded in March 2019. The Board directed the RO to obtain a medical opinion. In May 2019, the Veteran’s private doctor wrote a letter stating that the Veteran injured his lumbar spine while performing as a military wrestler and that he has been diagnosed with chronic back pain and recurrent muscle spasms of the lower back. However, this opinion is inadequate. Although it noted the Veteran injured himself in service and identified current disabilities, it did not provide a clear opinion regarding whether the Veteran’s current spine disabilities are related to his in-service injuries. In December 2019, a VA examination and medical opinion were prepared. The VA examiner diagnosed arthritis of the spine and opined that the arthritis was less likely than not related to his military service because “medical records while veteran was still in service did not indicate any diagnoses or treatment for any back condition or any related back condition. The first report or documented back diagnoses was after his active duty.” The VA medical opinion is inadequate in that it relied solely on the absence of evidence in the Veteran’s service treatment records. A lack of contemporaneous medical records, by itself, is not a sufficient rationale for a negative medical opinion. Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The examiner also did not discuss the Veteran’s lay statements, including his October 2018 testimony that he sought treatment for his lower back after leaving service in the early 1960s after falling to the floor when his back gave out. Additionally, the May 2019 letter from the Veteran’s private doctor indicated that the Veteran had recurrent muscle spasms of the lower back and the examiner did not address the etiology of this condition. Therefore, remand is necessary for a new VA medical opinion. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records from October 2020 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding the etiology of degenerative arthritis of the spine and recurrent muscle spasms of the lower back. The claims file must be made available to the reviewing clinician. The reviewing clinician is asked to provide a response to the following: Is the diagnosed degenerative arthritis of the spine and recurrent muscle spasms of the lower back at least as likely as not related to service, including a wrestling injury? In preparing an opinion, the examiner should consider and address the Veteran’s lay statements, including his October 2018 testimony that he sought treatment for his lower back after leaving service in the early 1960s after falling to the floor when his back gave out. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean 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.