Citation Nr: 21015285 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-02 830 DATE: March 17, 2021 ORDER Service connection for paroxysmal atrial fibrillation, claimed as cardiac arrhythmia, is granted. Service connection for a right ankle disability is denied. Service connection for a left ankle disability is denied. Service connection for a left shoulder disability is denied. REMANDED Entitlement to service connection for a respiratory condition to include chronic obstructive pulmonary disease (COPD) and bronchitis is remanded. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran’s paroxysmal atrial fibrillation is related to his active service. 2. The Veteran’s right and left ankle disabilities are not due to or a result of any disease or injury in service. 3. The Veteran’s left shoulder disability is not due to or a result of any disease or injury during service. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for paroxysmal atrial fibrillation are met. 38 U.S.C. §§ 1110, 1111, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a right and/or left ankle disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 1110, 1111, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from September 1961 to October 1983. These matters are on appeal to the Board of Veterans’ Appeals (Board) from a May 2013 rating decision by the Oakland, California Regional Office (RO) of the Department of Veterans’ Affairs (VA) in which the RO denied all of the claims addressed in this decision. The Veteran timely filed a notice of disagreement (NOD) and substantive appeal. In April 2019, the Veteran testified in a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In August 2019, the claims were remanded for further development. Subsequent to the September 2020 supplemental statement of the case, the Veteran elected to opt-in to the Appeals Modernization Act, but only as to the claim for an increased rating for service-connected hearing loss. The Veteran’s VA Form 10182 with regard to that issue was received in December 2020, and the Board issued a remand under separate cover in February 2021. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. 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 service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected; if a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, such chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). 1. Entitlement to service connection for paroxysmal atrial fibrillation The Veteran contends that his diagnosed paroxysmal atrial fibrillation had its onset during service. Service treatment records (STRs) reflect that a May 1974 examination of the chest showed evidence of previous granulomatous disease with left hilar calcifications. There is no evidence of cardiac enlargement, acute lung consolidation, or pleural effusions. The January 1983 separation report of medical examination reflects a normal clinical evaluation for the heart. Post-service, VA treatment records from January 2011 reflect that the Veteran had a diagnosis of history of atrial fibrillation. Radiology imaging from March 2018 revealed moderate cardiomegaly. In March 2019, the Veteran reported a long history of rhythm abnormalities that made him feel jittery. In addition to atrial fibrillation, he also has a history of atrial flutter. During an April 2019 Board hearing, the Veteran testified that he had a current diagnosis of paroxysmal atrial fibrillation. He reported that in service, he would all of a sudden get “jittery” without reason. He reported that he went to the dispensary at Beale, had an EKG conducted, but nothing was shown. A December 2019 VA examination report reflects that the Veteran was diagnosed with paroxysmal atrial fibrillation. The examiner noted that VA treatment records from January 2011 reflect that the Veteran had a diagnosis of history of atrial fibrillation. He noted that in March 2019, the Veteran reported a long history of rhythm abnormalities that made him feel jittery. In addition to atrial fibrillation, he also has a history of atrial flutter. The Veteran reported that he had a current diagnosis of paroxysmal atrial fibrillation. He reported that in service, he would all of a sudden get jittery. He reported that he went to the dispensary at Beale, had an EKG conducted, but nothing was shown. The examiner noted that the Veteran’s disability is currently asymptomatic, but that he takes Metoprolol for rate control of atrial fibrillation. The EKG confirmed intermittent (paroxysmal) atrial fibrillation with more than 4 episodes during the prior 12 months. The examiner reported that the etiology of any current heart/cardiac disability was unknown. Specifically, he reported that a review of the records and the objective evidence from the current examination did not reveal an etiology for atrial fibrillation. He reported that atrial fibrillation, only, has existed since the date of the claim based on a review of the STRs and the current medical records. He concluded that atrial fibrillation has a greater than 50 percent likelihood of having had its onset while in service. He reported that a review of the EKG both past and present and a current treatment plan by the cardiologist was evidence of this. Upon review of the evidence of record, the Board finds that service connection for paroxysmal atrial fibrillation is warranted. The only medical opinion of record establishes a nexus between the Veteran’s paroxysmal atrial fibrillation and service. Moreover, the physician who provided this opinion explained the reasons for the opinion based on an accurate characterization of the evidence. The opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the opinion based on the service history provided by the Veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinions are contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). The Board notes that the examiner reported that the etiology of any heart disability was unknown. However, he reported that a review of the records and the Veteran’s statements reveals that it is a greater likelihood that it had its onset in service. Thus, the examiner provided an opinion based, in part, on the Veteran’s reports of the onset of observable symptoms, and there is no reason to doubt the Veteran’s credibility in that regard. Moreover, there are no contrary medical opinions of record as to the etiology of his atrial fibrillation. The evidence is, thus, at least evenly balanced as to whether the Veteran’s diagnosed paroxysmal atrial fibrillation, had its onset during active service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for paroxysmal atrial fibrillation is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to service connection for a right ankle disability 3. Entitlement to service connection for a left ankle disability The Veteran contends that he has a right and left ankle disability due to his in-service injuries. STRs reflect that the Veteran sprained his right ankle in 1966 secondary to softball and his left ankle in 1969 secondary to softball. For the right ankle, there was moderate soft tissue swelling over the lateral malleolus without any evidence of recent fracture or dislocation of the bones. On both occasions, he was casted for eight weeks. In May 1969, radiographic report of the left foot and ankle revealed no fracture or dislocation. The January 1983 separation report of medical examination revealed that the Veteran’s ankles were both casted for eight weeks with no complications, no sequelae. He had a normal clinical evaluation for the lower extremities. Post service, a January 2013 VA examination report reflects that the Veteran was diagnosed with ankle strain of the left and right ankle in 1969. The Veteran reported that he injured his right ankle playing softball and twisted his ankle about 1964 or so. He reported that he was in a cast for about six weeks. He reported that he was told that it was a real bad sprain. He reported that his right ankle has been weak since then and has been subject to sprains. He has continued to have pain over the years. He reported that his left ankle has also been weak since his initial injury with continued pain over the years. He reported functional loss/impairment of the ankle. The examiner reported that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. As rationale, the examiner found that although the Veteran clearly had ankle injuries in the military, there was no indication that they continued after initial injuries healed. The examiner continued to report that there was no civilian evidence of continuing ankle injury. The Veteran’s x-rays did not show arthritis or other abnormalities that can be attributed to long term problems. VA treatment records from April 2019 reflect that the Veteran complained of chronic ankle pain. During the April 2019 Board hearing, the Veteran testified that he injured both ankles in service and they continued to cause problems. Private treatment records from May 2019 show that the Veteran reported chronic pain of his left and right ankle. He reported that the pain began after playing softball during the 1960’s while in the Air Force. He reported difficulty with ambulation due to pain and instability. A musculoskeletal examination revealed pain and tenderness upon palpation to the lateral aspect of the foot and ankle with decreased motion. Radiographic images from May 2019 reveal demineralization of bilateral ankles. There was an old avulsion fracture or ossicle to the distal aspect of the fibula in the left ankle. There is osteophytic lipping noted along the distal aspect of the medial malleolus. There are degenerative changes noted to the mid foot. A December 2019 VA examination report reflects that the Veteran has degenerative arthritis of the right and left ankle and bilateral ankle strain. The Veteran reported that subsequent to his diagnosed ankle strains in 1969, his right ankle has been weak since and he has been subject to sprains. He reported that he has continued to have pain over the years. He reported that his left ankle has also been weak since his initial injury and he has had continued pain over the years. The examiner noted that the Veteran’s functional impairment due to his bilateral ankle pain was the inability to go up and down stairs or to stand for prolonged periods of time. He noted that abnormal range of motion, pain, and fatigue was noted during the examination which limited the Veteran’s ability to go up/downstairs or stand for prolonged periods of time. The examiner opined that it is less likely than not that any impairment due to bilateral ankle pain is related to an in-service disease or injury or had its onset during the Veteran’s active service. As rationale, he reported that there was no chronicity of care status post separation from his active duty to the date of the examination. He noted that his condition while in service was self-limiting and resolved spontaneously. He concluded that it is more likely than not that the current bilateral ankle disability took place after his time in-service and was not caused by the in-service event. Upon review of the evidence of record, the Board finds that service connection for a bilateral ankle disability is not warranted. Initially, the Veteran has a current diagnosis of right and left ankle degenerative arthritis as reflected by the medical evidence of record. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service. Based on a review of the available records, his particular expertise, and medical literature, the December 2019 VA examiner found that the Veteran’s right and left ankle disabilities were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner noted the Veteran’s statements regarding his bilateral ankle pain and provided an adequate rationale for his conclusion that the Veteran’s disability was not due to service. As the clinician explained the reasons for his conclusions based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, the opinion of the December 2019 examiner is consistent with the opinion provided by the January 2013 examiner. To the extent that the Veteran, including through his representative, has opined that his right and left ankle disabilities are related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and 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 is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his bilateral ankle disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). Thus, while the Veteran is competent to report the continuation of an observation symptoms such as ankle pain, his assertion that current diagnosis of right and left ankle arthritis is related to his in-service right and left ankle injuries is therefore not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinion of the VA examiner to be of greater probative weight than the Veteran’s more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for a bilateral ankle disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 4. Entitlement to service connection for a left shoulder disability The Veteran contends that he has a left shoulder disability due to his in-service injury. STRs reflect that in October 1965, the Veteran had trauma to his left shoulder the Veteran sprained his left arm and shoulder. Radiology imaging was negative. At separation, the October 1983 report of medical examination examiner noted that the Veteran had a left shoulder sprain that was treated with a sling. He noted that the Veteran had a full recovery with no complications, no sequelae. On examination, a normal clinical evaluation was noted for the upper extremities. Post-service, a January 2013 VA examination report reflects that the Veteran had a diagnosis of left shoulder strain in 1965. The Veteran reported that he injured his left shoulder when he fell while carrying a case of paper on his shoulder. He reported that he was told that he had a shoulder strain. He reported that he continued to have left shoulder pain. He reported that he did not go to the clinic for it after service and learned to live with it until the pain increased over the last 10 years. The examiner noted functional impairment described as less movement than normal, weakened movement, pain on movement and excess fatigability. The examiner found that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that the Veteran clearly had a left shoulder injury in the military, but there were no further complaints of shoulder pain after it resolved in 1968. The Veteran did not indicate any residual shoulder problems on his report of medical history at separation, and the examiner found that there were no civilian records present to confirm any ongoing shoulder problems. VA treatment records from March 2019 reflect that the Veteran was positive for stiffness/pain in the joint of his back, shoulders, and toes. During the April 2019 Board hearing, the Veteran testified that in service, he had to unload cases that weighed anywhere from 70 to 80 pounds. He reported that one day, he was walking down the hall, he slipped, and when he did, he fell with a case on his shoulder. He reported that he now has pain and limitation of motion. A December 2019 VA examination report reflects that the Veteran had a diagnosis of left shoulder strain. He reported that he injured his left shoulder when he fell while carrying a case of paper on his shoulder. He reported that he was told it was a shoulder strain. He reported that he continued to have left shoulder pain. He reported that he did not go to the clinic for it after service and learned to live with it until the pain increased over the last 10 years. The Veteran reported functional loss/impairment described as less movement than normal, weakened movement, pain on movement, and excess fatigability. The examiner noted that the Veteran had a diagnosis of a left shoulder strain present on examination with no functional impairment that was not at least as likely as not (50 percent probability or greater) related to an in-service disease or injury. He noted that pain is a subjective finding, as reported by the Veteran, and could be from a multitude of sources. Upon review of the evidence of record, the Board finds that service connection for a left shoulder disability is not warranted. Initially, the Veteran has a current diagnosis of left shoulder strain as reflected by the medical evidence of record. As the current disability requirement has been met, the question remains as to whether there is a nexus between the disability and service. Based on a review of the available records and medical literature, the January 2013 and December 2019 examiners found that the Veteran’s left shoulder disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the January 2013 examiner found that the Veteran’s shoulder strain disability resolved based on radiology imaging as well as a lack of complaint from the Veteran of left shoulder pain in the medical records. Complaint of pain, functional impairment, and/or limitation was not taken into consideration. However, pursuant to Saunders v. Wilkie, the December 2019 VA examiner considered the Veteran’s complaint of pain and found that there was no functional impairment/limitation due to the pain. The examiners noted the Veteran’s statements regarding his shoulder and provided an adequate rationale for the conclusion that the Veteran’s disability was not due to service. As the clinicians explained the reasons for the conclusions based on an accurate characterization of the evidence of record, the opinions are entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). To the extent that the Veteran, including through his representative, has opined that his left shoulder disability is related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and 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 is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this case, the Veteran’s contentions as to the etiology of his left shoulder disability relate to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (witness capable of diagnosing dislocated shoulder). Thus, while the Veteran is competent to report an observable symptom such as pain, and the duration of pain, the Veteran’s statements as to causation are not competent in this regard. To the extent that these lay statements are credible, the Board finds the specific, reasoned opinion of the VA examiner to be of greater probative weight than the Veteran’s more general lay assertions. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim of service connection for a left shoulder disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory condition to include COPD and bronchitis. The Veteran contends that he has a respiratory disability that is due to his in-service bronchitis. STRs reflect that the Veteran was diagnosed with bronchitis. Additionally, he sporadically complained of congestive cough. At separation in October 1983, the report of medical examination noted a normal clinical evaluation for his lungs and chest. Post-service, private medical treatment records reflect that in 2011 the Veteran was seen for productive cough. Dr. D.T. reported that he suspected acute bronchitis, but he may have had community-acquired pneumonia. In a January 2013 VA examination report, the examiner noted that the Veteran had acute bronchitis in the past which resolved. The examiner noted that the Veteran had bronchitis several times in service. The Veteran reported that he developed bronchitis whenever he had a cold. He reported that this generally happened about once a year. He reported that he quit smoking but started again. He smokes about half a pack per day. The examiner opined that bronchitis was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner found that the Veteran does not meet the criteria for chronic bronchitis which is diagnosed bronchitis four or more times a year. He has not complained of a cough lasting three months for at least 2 years in a row. His chest X-ray did not show COPD. The examiner concluded the chronic bronchitis is one type of COPD. VA treatment records from 2015 reveal that the Veteran did not have chronic bronchitis/emphysema/asthma. During the April 2019 Board hearing, the Veteran testified that he is being treated for COPD and bronchitis. He reported that a couple of years ago, he was hospitalized for almost three weeks with bronchial pneumonia. He reported that he takes Advair for his lungs. He reported that he had chronic bronchitis ongoing since service. VA treatment records from March 2019 reflect that the Veteran had a clinical history of COPD. Radiographic findings of the chest revealed the trachea and bronchi are patent. The December 2019 VA examination report reflects that the Veteran had a diagnosis of COPD and chronic bronchitis. The examiner found that it is less likely than not that the currently diagnosed COPD and bronchitis began during the Veteran’s 22 years of active service. As rationale, he reported that although STRs reflect that the Veteran was diagnosed with bronchitis and he sporadically complained of congestive cough, at separation in October 1983, the report of medical examination noted a normal clinical evaluation for his lungs and chest. He reported that post-service, private medical treatment records reflect that in 2011 the Veteran was seen for productive cough. Dr. D.T. reported that he suspected acute bronchitis, but he may have had community-acquired pneumonia. The Board finds that the December 2019 opinion is not adequate. Notably, the Veteran’s bronchitis was not determined to be acute, but chronic indicating that it could have been persistent for a long time, constantly recurring. Additionally, there was not opinion on the Veteran’s diagnosis of COPD, noting that COPD can develop due to chronic bronchitis and the Veteran first had bronchitis in service. Consequently, an addendum nexus opinion is warranted to decide the claim. The matters are REMANDED for the following action: 1. Obtain a medical opinion by an appropriate physician or other qualified pulmonology clinician. The claims folder, to include a copy of this Remand, must be made available to and reviewed by the physician prior to completion of the opinion, and the opinion must reflect that the claims folder was reviewed. A VA examination should not be scheduled unless deemed necessary to provide the opinion. The clinician should opine as to whether the Veteran’s diagnosed COPD and chronic bronchitis at least as likely as not (1) began during the Veteran’s 22 years of active service; (2) manifested to a degree of at least 10 percent disabling within one year after discharge from service; OR (3) is related to an in-service injury, event, or disease, including the Veteran’s multiple in-service bronchitis diagnoses and subsequent diagnosis of chronic bronchitis and COPD. The examiner should also opine whether the Veteran’s COPD and/or chronic bronchitis is, more likely than not, due to years of smoking, irrespective of its onset. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laroche, N. 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.