Citation Nr: 21028031 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-51 264 DATE: May 10, 2021 ORDER Entitlement to service connection for atrial fibrillation, is denied. Entitlement to service connection for congestive heart failure, is denied. REMANDED Entitlement to service connection for benign prostate hypertrophy, is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that atrial fibrillation began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that congestive heart failure began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for atrial fibrillation are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). 2. The criteria for service connection for congestive heart failure are not met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1960 to April 1980. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was previously before the Board in December 2018, when it was remanded for additional development. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). The Board finds that there has been substantial compliance with the Board's previous remand directives and the matter is properly before the Board. Id. Duty to Notify and Assist The appellant has not raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection requires evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In each case where a veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). Additionally, service connection may be granted on a secondary basis. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for atrial fibrillation. 2. Entitlement to service connection for congestive heart failure. The Veteran contends that service connection is warranted for atrial fibrillation and congestive heart failure. The Board previously found that the July 2016 VA examiner noted that congestive heart failure was likely associated with atrial fibrillation, and found that the claim for congestive heart failure is inextricably intertwined with the outcome of the claim for service connection for atrial fibrillation. The Board also noted that post-service medical records showed a diagnosis of atrial fibrillation, and the Veteran's service treatment records (STRs) showed finding of a first-degree AV block based on an October 1977 clinical evaluation. The Board remanded the issue after noting that the record contained a May 2016 VA medical opinion addressing the etiology of atrial fibrillation, but it did not address the in-service finding of first-degree AV block with respect to atrial fibrillation. An addendum opinion was obtained post-remand in September 2019. The examiner opined that the Veteran's atrial fibrillation was not caused by, or due to his first-degree AV block that was noted in service. The examiner added that several decades passed between the notation of the AV Block in service noted around 1977 and the development of atrial fibrillation around 2004. The examiner explained that the strongest medical associations that are related to the development of atrial fibrillation are hypertensive heart disease and coronary heart disease, and that there has not been any association between atrial fibrillation being caused by First Degree AV block. Thus, the examiner opined that it is less likely than not that the Veteran's atrial fibrillation was caused by his in-service AV block. In September 2019, the Veteran's representative submitted a private medical opinion from Dr. M.S., who opined the Veteran's first-degree ventricular block is associated with atrial fibrillation and left ventricular disfunction, even in the absence of atrial fibrillation. However, the Board assigns more weight to the VA examinations of record as Dr. M.S.'s opinion is inconsistent with the evidence of record and provides limited evidence to support his opinion that both atrial fibrillation and congestive heart failure should be service connected based on the AV Block in-service, because it is "well documented in a number of medical journals and textbooks," citing a study from 2016 without elaborating further about the nature and purpose of the study, which is unavailable for review. The Board has considered lay statements from the Veteran. However, the etiology of a condition such as atrial fibrillation and congestive heart failure requires specialized testing and medical analysis that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran possess the requisite medical knowledge to make such a determination whether his atrial fibrillation and congestive heart failure was caused as a result of his military service. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. Service connection for atrial fibrillation and congestive heart failure is not warranted on a direct, secondary or presumptive basis, and is denied. REASONS FOR REMAND 3. Entitlement to service connection for benign prostate hypertrophy is remanded. The Veteran contends that service connection for benign prostate hypertrophy is warranted because it was caused during active duty. The Board previously remanded the issue after noting that a July 2016 VA examiner failed to address whether the Veteran's benign prostate hypertrophy was related to suspect nodule of the right lobe of prostate in October 1977 that was noted in the Veteran's STRs, including in-service treatment for urethral discharge and prostatitis in March 1997. Furthermore, an opinion regarding exposure to herbicide agents was not provided. An addendum opinion was obtained post-remand in September 2019. The examiner opined that benign prostate hypertrophy is benign enlargement of the prostate that occurs commonly in males and is generally associated with advancing age among other risk factors. However, it is not medically associated with an episode of prostatitis. Thus, the examiner offered a negative etiology opinion that the Veteran's condition was less likely than not related to service. An opinion regarding environmental exposure and urethral discharge was not offered. Thus, the examination is inadequate. In September 2019, the Veteran's representative submitted a private medical opinion from Dr. M.S., who opined the Veteran's prostatic nodules noted in-service are associated with benign prostatic hypertrophy. He provided a rationale that that the association is because both prostatic hypertrophy and prostatic nodules result from abnormal growth of cells in the prostate that my or may not be malignant, and that this association has been well documented, citing to a study from April 2017 regarding prostate nodules as a sign of cancer. However, the rationale is inadequate as the nature and conclusions of the cited study are not provided, and the study is unavailable for review. Thus, the private opinion is also inadequate. An addendum opinion is needed upon remand. Where VA provides the Veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current benign prostatic hypertrophy is: a. at least as likely as not related to suspect nodule in the right node of the prostate, prostatitis, or urethral discharge that was noted in-service. See October 1997; March 1997 STRs. b. at least as likely as not related to herbicide exposure due to service in the Republic of Vietnam. In providing the opinion, the examiner must review and discuss the study provided by the Veteran's attorney in September 2019 regarding 'Serum Dioxin, Testosterone, and Subsequent Risk of Benign Prostatic Hyperplasia: A prospective Cohort Study of Air Force Veterans.' Provide a detailed rationale to support the opinion. In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 2. After accomplishing any additional development deemed appropriate, readjudicate the claim on appeal. If the benefit sought in connection with the claim remain denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and given the opportunity to respond and appropriate period should be allowed before the record is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Khan, 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.