Citation Nr: 21041400 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-40 994 DATE: July 9, 2021 REMANDED Entitlement to service connection for a heart disability, to include cardiomyopathy and atrial fibrillation, to include as secondary to service-connected disability, or in the alterative, as due to in-service herbicide exposure, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by a Regional Office the Department of Veterans Affairs (VA). In May 2014, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. In June 2014, September 2017, January 2019, and July 2019, the Board, in pertinent part, remanded claims for service connection for cardiomyopathy and atrial fibrillation for additional development. These matters now return for appellate review. However, as other heart diagnosis are of record, including atherosclerotic cardiovascular disease, the Board has recharacterized the separate claims for service connection for cardiomyopathy and atrial fibrillation as a single claim for a heart disability; however, diagnosed. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). 1. Entitlement to service connection for a heart disability, to include cardiomyopathy and atrial fibrillation, to include as secondary to service-connected disability, or in the alterative, as due to in-service herbicide exposure, is remanded. Most recently, in July 2019, the Board directed, in part, the Veteran be scheduled for an examination by an appropriate clinician to determine the nature and etiology of any cardiomyopathy and atrial fibrillation present both before and after his cardiac transplant and opine whether it is at least as likely as not any cardiomyopathy and atrial fibrillation were aggravated by his service-connected diabetes mellitus. However, unfortunately, the resulting VA opinions, are inadequate. Specifically, the resulting April 2020 heart conditions disability benefits questionnaire endorsed diagnoses of atherosclerotic cardiovascular disease in 2017, congestive heart failure in 2007, cardiomyopathy in 2007, a heart transplant in 2017, an implanted automatic implantable cardioverter defibrillator (AICD) in 2015, and atrial fibrillation in 2007. The April 2020 VA examiner described the Veteran was diagnosed with severe idiopathic cardiomyopathy in 2007, which was thought to be non-ischemic disease at that time, that his disease progressed and he had to have a left ventricular assist device (LVAD) and implantable cardioverter defibrillator (ICD) placed in 2015, then had a heart transplant in 2017 with the removal of the ICD and LVAD, and per the records, with his long standing history of diabetes, within the final pathology of the native heart, it was discovered that he had arteriosclerotic heart disease. The April 2020 VA examiner also found, in part, the claimed conditions (atrial fibrillation and ischemic cardiomyopathy) were at least as likely as not related to the Veteran's service connected diabetes, as diabetes caused macro-vascular changes, which then led to heart disease based on the heart biopsy, which has been known to cause the diagnosed conditions, including atrial fibrillation and ischemic cardiomyopathy/congestive heart failure, and which, in turn necessitated the heart transplant. However, the April 2020 VA examiner's opinion was factually inaccurate as the Veteran was diagnosed with non-ischemic cardiomyopathy in 2003 and with diabetes in 2009. Thus, in an August 2020 addendum opinion, the April 2020 VA examiner found the Veteran's pre-transplant cardiomyopathy and atrial fibrillation were secondary to viral cardiomyopathy, and therefore, not related to diabetes, which was diagnosed in 2009. However, the examiner also indicated, in the pathology of the native heart, it was discovered that the Veteran had arteriosclerotic heart disease in 2017, which was a secondary side effect of long term diabetes mellitus, but also generally found the medical evidence was not sufficient to support the determination of a baseline. The examiner also explained the Veteran did not have atrial fibrillation or cardiomyopathy anymore as he had a heart transplant, so these conditions had not been aggravated and severity was not greater than the baseline. However, this opinion does not provide a rationale which adequately addressed Veteran's pre-transplant cardiomyopathy and atrial fibrillation on the basis of aggravation when each existed, as it relied upon on finding these disabilities had resolved. Accordingly, in another November 2020 addendum opinion, the same examiner also addressed the claim as clearly and unmistakably existing prior to service, and clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, in the November 2020 opinion, the examiner used the incorrect standard, the standard for non-secondary aggravation, which is not shown or alleged in this case. Instead, the aggravation prong of secondary service connection requires a worsening of the claimed disorder, but not a permanent worsening of the claimed disorder. Ward v. Wilkie, 31 Vet. App. 233 (2019). Compensation under 38 U.S.C. § 1110 and 38 C.F.R. § 3.310 (b) is due for any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Thus, November 2020 opinion is inadequate for failure to evaluate aggravation under the appropriate legal standard and another opinion is warranted. Additionally, the prospective examiner should consider the Veteran's representative's contentions, with the provided citations, as listed in the March 2021 Informal Hearing Presentation, that with time, the high glucose in the bloodstream damaged the arteries, causing them to become stiff and hard and eventually could block blood flow, and having diabetes increased the likelihood of developing heart disease. Further, the Board cannot make a fully-informed decision on this claim because no VA examiner has provided a clear opinion as to whether the Veteran has a qualifying heart disability, such arteriosclerotic heart disease, which is presumptively to related to his conceded herbicide exposure during service in the Republic of Vietnam, and whether his heart disabilities, other than cardiomyopathy and atrial fibrillation, are secondary to his service-connected diabetes mellitus, type II. In this regard, the April 2020 VA examiner found the Veteran's arteriosclerotic heart disease qualified within the generally accepted medical definition of ischemic heart disease but also found his arteriosclerotic heart was due to diabetes. The April 2020 VA examiner further found the Veteran's heart transplant was due to his arteriosclerotic heart disease, congestive heart failure and atrial fibrillation, his congestive heart failure was due to arteriosclerotic heart disease, and his AICD was due to atrial fibrillation and congestive heart failure. However, the examiner did not provide any rationale. Accordingly, a VA opinion addressing the Veteran's heart disabilities other than cardiomyopathy and atrial fibrillation is warranted. Additional development is also required to address the claim as secondary to the Veteran's service-connected posttraumatic stress disorder (PTSD), including alcohol use disorder. In this regard, an August 2006 private medical record documented, in part, the Veteran reported that his atrial fibrillation started last summer after he had been dealing with a lot of stress and anxiety issues through his workplace and that he and his lawyer were curious if the atrial fibrillation was related to his stress and anxiety caused by work. As the Veteran is service-connected PTSD, including alcohol use disorder, and as this record raises the possibility that there is a connection between the Veteran's heart disability and a psychiatric disability, a VA opinion addressing the claim as secondary to the Veteran's service-connected PTSD, including alcohol use disorder, is warranted. The matters are REMANDED for the following actions: 1. Obtain opinions from an appropriate clinician regarding the nature and etiology of the Veteran's heart disabilities, with examination only if deemed necessary by the clinician. After review of the claims file, the clinician is asked to provide a response, with a rationale to support each proffered opinion, to the following: (a.) Is it at least as likely as not that the Veteran's pre-transplant cardiomyopathy was aggravated (any increase in disability) by service-connected diabetes mellitus, type II? Please explain; (b.) Is it at least as likely as not that the Veteran's pre-transplant atrial fibrillation was aggravated (any increase in disability) by service-connected diabetes mellitus, type II? Please explain; In providing the above opinions, the examiner should consider the Veteran's representative's contentions with citations, as listed in the March 2021 Informal Hearing Presentation, that with time, the high glucose in the bloodstream damaged the arteries, causing them to become stiff and hard and eventually could block blood flow, and having diabetes increased the likelihood of developing heart disease. (c.) Whether the Veteran has a heart disability, other than cardiomyopathy and atrial fibrillation, which is at least as likely as not (1) proximately due to his service-connected diabetes mellitus, type II, or (2) aggravated (any increase in disability) by his service-connected diabetes mellitus, type II. Please explain; (d.) Whether the Veteran has a heart disability, to include cardiomyopathy and atrial fibrillation, which is at least as likely as not (1) proximately due to his service-connected PTSD, including alcohol use disorder, or (2) aggravated (any increase in disability) by his service-connected PTSD, including alcohol use disorder. Please explain; (e.) Whether the Veteran has a heart disability, to include arteriosclerotic heart disease, which is at least as likely as not related to conceded herbicide exposure during service in Vietnam. Please explain. Aggravation is defined as a worsening beyond the natural progression of the disability. A complete rationale must be provided for any opinion offered. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.