Citation Nr: 22014169 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-24 825A DATE: March 11, 2022 ORDER Service connection for a heart disability other than coronary artery disease (to include cardiomyopathy, symptomatic bradycardia corrected by pacemaker, and benign hypertensive heart disease) is denied. FINDING OF FACT The evidence is not in approximate balance but is persuasively weighted against finding that the Veteran has a heart disability other than coronary artery disease that is causally related to service or a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a heart disability other than coronary artery disease have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1958 to November 1960, February 1961 to March 1964, March 1965 to April 1981, and February 1991 to April 1991. In January 2019, the Board of Veterans' Appeals (Board) denied the service connection claim for an implanted cardiac pacemaker (now referred to as a "heart disability"). In March 2020, the U.S. Court of Appeals for Veterans Claims (CAVC) issued an order that vacated the Board decision and remanded the claims for compliance with a Joint Motion for Partial Remand (JMPR). The Board again remanded this matter for further development in September 2020 and June 2021. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Service connection for a heart disability In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease 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. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all the evidence in the claims file, including the medical and lay evidence, to determine its probative value. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence to prevail. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). Treatment records first document the use of a cardiac pacemaker from 2007 onwards. A September 2010 EKG showed no arrhythmias or acute dynamic ischemic changes. A September 2012 VA examination noted the implementation of a cardiac pacemaker. The examiner opined that it was not related to the Veteran's service because there were no documented heart conditions during service and the Veteran was not diagnosed with a heart condition until many years after service in 2007. An August 2015 VA examination documents an interview based METs test and the Veteran reported experiencing dyspnea. The examiner found it to be less likely than not that the Veteran's heart disability is causally related to service or a service-connected disability but not provide any rationale. In the October 2018 substantive appeal the Veteran attributed his cardiac pacemaker to chronic fatigue and body weakness experienced during his service in Vietnam and in the Persian Gulf. The Board denied service connection for this claim in December 2019 emphasizing that the Veteran is not diagnosed with ischemic heart disease that manifested within a year of his active-duty service and that his cardiac pacemaker was not implanted until 17 years after service. CAVC vacated this denial in a March 2020 JMPR finding that the Veteran should be afforded a new VA examination that adequately addresses whether the Veteran's cardiovascular disability is ischemic in nature and if it is related to his service on a direct basis. The examiner was asked to specifically address an August 2016 VA CT scan that discovered "mild atherosclerotic disease throughout the visualized abdominal aorta." A November 2020 VA examination report indicated that the Veteran has a diagnosis for coronary artery disease (CAD) and this disability has since been service connected with a currently assigned 100 percent evaluation. The Veteran was also diagnosed with cardiomyopathy and benign hypertensive heart disease. The report also indicates that the Veteran's implanted cardiac pacemaker is secondary to symptomatic bradycardia which does not have a known etiology. The Board again remanded this matter in June 2021 to obtain a VA medical opinion addressing whether any heart disability other than coronary artery disease, to include but no limited to cardiomyopathy, benign hypertensive heart disease, and symptomatic bradycardia, is related to an in-service disease or injury, to include the Veteran's presumed exposure to herbicide agents therein. The Veteran's claim was also expanded to consider secondary service connection for a heart disability as proximately due to or aggravated by service-connected CAD. An October 2021 VA medical opinion was obtained from an examiner who indicated that they reviewed all the Veteran's pertinent medical treatment records. Concerning direct service connection, the examiner found no evidence of symptoms or manifestations of cardiomyopathy, symptomatic bradycardia corrected by pacemaker, or benign hypertensive heart disease in the Veteran's service treatment records (STRs) or within proximity to service. The examiner determined that the onset of these disabilities all date to recent years. Ultimately, they determined that it is less likely than not that any of these heart disabilities are causally related to the Veteran's service. Regarding secondary service connection, the examiner explained that a review of the applicable medical literature does not support an etiological link between CAD and cardiomyopathy, symptomatic bradycardia corrected by pacemaker, or benign hypertensive heart disease. The examiner elaborated that the medical literature does not show that CAD can proximately cause or aggravate these disabilities beyond their natural progression because they are characterized by different pathophysiological processes that are unrelated to one another. After a thorough review of the evidence, the Board finds that the competent medical evidence of record weighs against finding that the Veteran has a heart disability that is causally related to his service, to include due to exposure to herbicidal agents or service-connected CAD. With respect to a direct service connection theory of entitlement, the record does not contain an opinion or evidence submitted by a competent medical professional positing a causal link between any heart disability other than CAD and the Veteran's service. The October 2021 VA examiner indicated that they reviewed all the pertinent medical evidence and found no basis for the establishment of an etiological link between cardiomyopathy, symptomatic bradycardia corrected by pacemaker, or benign hypertensive heart disease, and the Veteran's service. The examiner based their opinions on the medical evidence of record, current peer-reviewed medical literature, and their own training, experience, and expertise as a medical professional. It is therefore entitled to substantial probative value. With respect to a secondary service connection theory of entitlement, this examiner also determined that the applicable medical literature does not support a determination that CAD proximately caused or aggravated the Veteran's cardiomyopathy, symptomatic bradycardia corrected by pacemaker, or benign hypertensive heart disease because these disabilities have different pathophysiologies. The examiner again based their opinions on the medical evidence of record, current peer-reviewed medical literature, and their own training, experience, and expertise as a medical professional. The Board has weighed lay contentions positing a causal relationship between a heart disability and the Veteran's service, to include due to exposure to herbicidal agents, and/or service-connected disabilities. Lay testimony and opinions are not competent to provide the requisite cause of this disability because this determination requires medical expertise and training which the Veteran have not been shown to possess. 38 C.F.R. § 3.159 (a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Further, there is no adequate medical opinion (i.e., a clinical opinion based on review of pertinent medical records containing an adequate rationale) that substantiates the nexus element (causal relationship) of the Veteran's claim under either a direct or secondary service connection theory of entitlement. To the extent that the Veteran's lay assertions are competent, they are outweighed by the reasoned opinions that are supported by robust rationales tendered by the 2021 VA examiner. (Continued on the next page) In summary, the evidence is not in approximate balance but is persuasively weighted against finding that service connection is warranted for a heart disability, including cardiomyopathy, symptomatic bradycardia corrected by pacemaker, or benign hypertensive heart disease. The service connection claim therefore must be denied. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.