Citation Nr: 21009568 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-31 327 DATE: February 22, 2021 ORDER Entitlement to service connection for a heart disability other than ischemic heart disease (IHD), to include atrial fibrillation, is denied. FINDINGS OF FACT 1. The Veteran’s currently diagnosed atrial fibrillation is not etiologically related to his military service or a service-connected disability. 2. The Veteran’s currently diagnosed mitral valve prolapse (MVP) is a congenital disease that clearly and unmistakably existed prior to service and was not aggravated by his military service. CONCLUSION OF LAW The criteria for service connection for a heart disability other than IHD are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from October 1954 to October 1980, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board notes that in his August 2015 VA Form 9, the Veteran requested a Travel Board hearing. However, by way of correspondence received February 2016, the Veteran withdrew his request for a hearing before the Board. By way of procedural background, in February 2017, the Board remanded the claim for service connection for IHD for clarification as to whether the Veteran has heart disease, including IHD, and to obtain a medical opinion addressing whether any diagnosed heart disease was related to service or caused or aggravated by his service-connected diabetes mellitus. The RO obtained the requested opinion, readjudicated the claim, and continued the denial of service connection as reflected in an August 2017 Supplemental Statement of the Case (SSOC). In October 2017, the Board broadened the service connection claim for a heart disability to include IHD and a heart disability other than IHD, to include atrial fibrillation, and granted service connection for IHD. As the Board’s grant of service connection for IHD is considered a full grant of the benefits on appeal for that claim, that issue is no longer before the Board for appellate consideration. AB v. Brown, 6 Vet. App. 35 (1993). In its October 2017 decision, the Board also remanded the claim for service connection for a heart disability other than IHD for additional development. The RO completed the requested development, readjudicated the claim, and continued the denial of service connection as reflected in an April 2019 SSOC. In July 2019, the Board remanded the claim for service connection for a heart disability other than IHD to obtain an adequate addendum opinion addressing direct service connection for the Veteran’s atrial fibrillation. The RO obtained the requested opinion, readjudicated the claim, and continued the denial of service connection as reflected in a December 2019 SSOC. In March 2020, the Board remanded the claim for service connection for a heart disability other than IHD to obtain an adequate opinion addressing the nature and etiology of the Veteran’s diagnosed mitral valve prolapse (MVP). The RO obtained the requested opinion, readjudicated the claim, and continued the denial of service connection as reflected in an August 2020 SSOC. In November 2020, the Board remanded the claim for service connection for a heart disability other than IHD for further medical clarification. The RO obtained the requested opinion, readjudicated the claim, and continued the denial of service connection as reflected in a November SSOC. The matter has now returned to the Board for further appellate consideration. The Board observes that additional VA treatment records were associated with the claims file since the RO’s adjudication in a November 2020 SSOC, without a waiver of initial RO consideration. See VA treatment records received February 2021; see also Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). However, these records are duplicates of VA treatment records that were considered by the RO in the November 2020 SSOC. As such, a waiver is not required, and the Board may proceed with this adjudication. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a heart disability other than IHD 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. Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded on a veteran’s examination report are to be considered as “noted.” 38 C.F.R. § 3.304(b). When a preexisting condition is not noted on a veteran’s entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government rebuts the presumption of soundness, the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness by showing any of the above, the veteran’s claim is one of direct service connection. Horn v. Shinseki, 25 Vet. App. 231, 236-37; Wagner, 370 F.3d at 1096. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a pre-existing disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). Service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss application of the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. In this regard, the presumption of soundness does not apply to congenital defects because such defects “are not diseases or injuries” within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin, 22 Vet. App. at 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is “not the type of disease- or injury-related defect to which the presumption of soundness can apply”). For purposes of determining whether a disorder is a congenital defect or a familial disease, VA interprets the term “disease” in 38 U.S.C. §§ 1110, 1131 and the term “defects” in 38 C.F.R. § 3.303(c) as being mutually exclusive. “Disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90 (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed. 1974)). On the other hand, the term “defect,” viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between “disease” and “defect,” indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). A congenital “defect” is not a disability for VA compensation purposes unless the defect was subject to a superimposed disease or injury. See 38 C.F.R. § 3.303(c); VAOPGCPREC 82-90; Monroe, 4 Vet. App. at 515. If it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-97. VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA’s Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. Certain diseases are associated with herbicide agent exposure and shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). As pertinent here however, atrial fibrillation and MVP are not among the enumerated diseases under 38 C.F.R. § 3.309(e); therefore, presumptive service connection based on herbicide agent exposure is not for application. Despite this, the instant Veteran may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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(b); 38 C.F.R. § 3.102. Analysis Here, the Veteran asserts he is entitled to service connection for a heart disability other than IHD. As an initial matter, the Board finds that the Veteran has current diagnoses of atrial fibrillation and MVP. See letters from Dr. G.H. dated July 2012 and November 2012; private “Ischemic Heart Disease” Disability Benefits Questionnaires (DBQs) dated January 2011 and November 2012; VA treatment records dated May 2003 to October 2019. Therefore, a current disability is established. Next, the Board finds that the Veteran had an in-service event; namely, chest pains. In a July 1977 service treatment record (STR), the Veteran complained of intermittent chest pain in his left subpectoral region radiating laterally that was not related to physical activity and was usually more noticeable when sitting quietly or laying down. Physical examination revealed a regular rhythm and no murmurs, and service medical personnel noted that “EKG appears unchanged from previous tracing.” The Veteran was ultimately prescribed Mylanta. In an April 1980 STR, the Veteran complained of chest pain lasting a week, and service medical personnel assessed him with dyspepsia. As such, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran’s service and his current non-ischemic heart diagnoses, or whether they are secondary to another service-connected disability. Upon thorough review of the evidence, the Board finds that the preponderance of the medical evidence weighs against the Veteran’s claim. As to the Veteran’s diagnosis of MVP, in an October 1954 Report of Medical Examination rendered at service entrance, the Veteran’s heart was noted to be normal on clinical evaluation. In a November 2020 VA medical opinion, the VA examiner determined that MVP is a congenital disease, explaining, “[m]itral valve prolapse, as part of its natural history, is prone to progressive worsening with associated worsening mitral regurgitation over time.” As discussed previously, if it is determined that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-97. VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. Monroe, 4 Vet. App. at 515. In this regard, the November 2020 VA examiner opined that the Veteran’s claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness, reasoning, “7/21/15 Heart DBQ demonstrates that the [Veteran] had an LVEF of 58% on 4/21/11 echocardiogram and a METs Level of 7.6 on a 7/31/12 Stress Test, this falls within the projected natural history of the condition and not aggravation (beyond natural progression).” Additionally, in an April 2020 VA medical opinion, the same examiner opined, “the congenital disease was not aggravated (worsened) by the veteran’s military service or in-service chest pains,” reasoning, “3/13/17 Heart DBQ demonstrates intermittent dyspnea with METs level 5-7; this falls within the projected natural history of the condition and does not represent aggravation (beyond natural progression).” The Board finds the April 2020 and November 2020 VA medical opinions adequate and affords them great probative value, as they were rendered by a medical doctor with a specialty in internal medicine who reviewed the Veteran’s claims file and provided an adequate rationale with references to cardiological testing results. Based on the April 2020 and November 2020 VA medical opinions, the Board finds that MVP is a congenital disease that clearly and unmistakably pre-existed the Veteran’s military service and was not aggravated by his service. As such, the presumption of soundness is rebutted, and the Veteran is not entitled to service-connected benefits for his diagnosed MVP. As to the Veteran’s diagnosis of atrial fibrillation, in a December 2019 VA medical opinion, the VA examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, reasoning, “[t]here is no objective evidence contained within the C-file which demonstrates presence of atrial fibrillation during service (ECG, rhythm monitor, etc). The Veteran’s symptoms during service which include chest pain represent non-specific complaints that are not diagnostic of atrial fibrillation.” The Board finds the December 2019 VA medical opinion adequate and affords it great probative value as it was authored by a medical doctor with a specialty in internal medicine who reviewed the Veteran’s claims file, considered the Veteran’s lay reports of symptoms during service, and provided an adequate rationale. Furthermore, in an April 2019 VA medical opinion, the VA examiner provided opinions as to secondary causation and aggravation. Regarding secondary causation, the VA examiner opined that the claimed condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition, reasoning, “[n]either diabetes nor IHD are established etiologies of atrial fibrillation in the medical literature.” Regarding secondary aggravation, the VA examiner opined that the Veteran’s claimed condition was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected condition, reasoning, “[n]either diabetes nor IHD are established aggravating factors of atrial fibrillation in the medical literature.” The Board finds the April 2019 VA medical opinions as to secondary service connection adequate and highly probative as they were authored by a medical doctor with a specialty in internal medicine who reviewed the Veteran’s claims file, addressed both secondary causation and aggravation avenues, and provided a rationale supported by medical literature. The Board notes that the record does not contain an adequate etiology opinion in support of the Veteran’s claim for service connection for a heart disability other than IHD. As such, the preponderance of the competent evidence weighs against the Veteran’s claim. For these reasons, the appeal must be denied. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate 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.