Citation Nr: 22016293 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-16 874 DATE: March 21, 2022 ORDER Entitlement to service connection for a heart condition, as secondary to service-connected degenerative disc disease of the lumbar spine (lumbar spine disability), is granted. FINDING OF FACT The Veteran's heart condition is etiologically related to his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a heart condition, as secondary to service-connected lumbar spine disability, have been met. 38 U.S.C. §§ 1110, 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Marine Corps from May 1991 to June 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), in which entitlement to service connection for posttraumatic stress disorder was granted, and the issues of entitlement to service connection for disabilities of the back, neck, and heart were denied. The Board notes that in his December 2016 notice of disagreement (NOD), the Veteran appealed the initial disability rating assigned for his service-connected PTSD, as well as the denial of service connection for disabilities of the back, neck, and heart. During the pendency of the appeal, in a January 2018 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine and degenerative arthritis of the cervical spine, resolving the issues of entitlement to service connection for disabilities of the back and neck. Then, in a February 2018 statement of the case (SOC), the Agency of Original Jurisdiction (AOJ) addressed the increased rating claim for PTSD and the service connection claim for a heart condition. In his March 2018 substantive appeal (VA Form 9), the Veteran perfected his appeal for the heart condition claim. Therefore, based on the foregoing, the issue now before the Board is entitlement to service connection for a heart condition. In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. The undersigned granted the request to hold the record open for 30 days to allow the submission of additional evidence. Following the hearing, the Veteran submitted additional evidence with the evidentiary record. The Veteran did not waive AOJ review of this evidence. Although the AOJ has not had an opportunity to review all the new evidence, there is no prejudice to the Veteran in adjudicating the claim because the full benefit sought on appeal is being granted. SERVICE CONNECTION Generally, to establish service connection, a Veteran must show: "(1) the existence of a present 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may also be warranted for a disability, which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To substantiate a secondary service connection claim, the Veteran must show a present disability (for which service connection is sought); a service-connected disability; and competent evidence that the service-connected disability caused or aggravated the disability for which service connection is sought. In addition, for certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). The presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. § 3.309, 3.309(a). When chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim for such diseases. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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 evidence favorable to the veteran. See Gabrielson, 7 Vet. App. at 39-40; Gilbert, 1 Vet. App. at 57. Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno, 6 Vet. App. at 469. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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, 10 Vet. App. at 74; Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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 the evidence weighs persuasively against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to service connection for a heart condition, as secondary to service-connected lumbar spine disability, is granted. The Veteran seeks service connection for a heart condition. The Veteran asserts that his heart condition is due to his service-connected lumbar spine disability. The Veteran has undergone various back surgeries, including a procedure conducted in January 2016. The Veteran specifically asserts that his heart condition is secondary to the January 2016 surgery for his service-connected lumbar spine disability. See October 2021 Hearing Transcript at pgs. 3-5. The Board has carefully reviewed the evidence of record and finds that the criteria for service connection for a heart condition on the basis of secondary service connection have been met. The Veteran is service connected for a lumbar spine disability (which is not at issue in this appeal). Service treatment records are silent as to any complaints, treatment or clinical diagnosis of a heart condition. As an initial matter, the Veteran has diagnoses of myocardial infarction, coronary artery disease, and hypertensive heart disease. See May 2015 private Disability Benefits Questionnaire (DBQ) for heart conditions. Thus, the first element of service connection is met. See Allen, 7 Vet. App. at 448 (reflecting that the existence of a current disability is required to establish service connection on a secondary basis). The January 2016 back surgery report shows that, following the back surgery on that day, the Veteran underwent emergency diagnostic catheterization from the right femoral approach. After the back surgery earlier that day, the Veteran developed a chest pain syndrome. The report notes that the Veteran has no history of myocardial infarction, stroke, or heart failure. In an April 2016 post-operation record, Dr. R.H., the Veteran's private treating physician, addressed the cause of the heart issues following the back surgery in January 2016 and stated, "[s]uspect this was acute plaque rupture as a consequence of stress of surgery." A May 2016 DBQ for heart conditions provided by Dr. R.H. notes that the Veteran underwent a lumbar fusion on January 26, 2016. Dr. R.H. further noted that the Veteran was "transferred to neuro in stable condition post-op." Later that evening, the Veteran "started to have left-sided chest pain and SOB [shortness of breath]." The Veteran was later coded and revived. An August 2016 private neuropsychological consultation report notes that review of the discharge summary from the Veteran's hospitalization confirm that he had an anterior septal infarct. Following that, he became unarousable and had a drop in O2 stats. He required six to seven defibrillations and was given a round of cardiac medications. He was successfully intubated and stabilized with a sinus rhythm. An October 2017 VA cardiology record notes that the Veteran has a history of myocardial infarction after lower back surgery with electrical instability and several defibrillations for ventricular arrhythmias and status post drug-eluting stent to the left circumflex. During the October 2021 hearing, the Veteran testified that, as a result of the stress from the 2016 back surgery, he had a myocardial infarction at that time, post-surgery. He stated that, after the surgery, the doctors were having some issues bringing him back out of recovery. He started having some chest problems and chest pains and numbness in his arm. He had a "full blown heart attack" 15-20 minutes later. The Veteran stated that he had no heart issues prior to the 2016 back surgery. Based on the totality of the evidence, the Board finds the evidence is in equipoise as to whether the Veteran's heart condition is secondary to his service-connected lumbar spine disability, specifically secondary to the January 2016 surgery received for his lumbar spine condition. The medical evidence shows that, prior to the January 2016 back surgery, the Veteran had no history of myocardial infarction, stroke, or heart failure. Furthermore, the Veteran testified that he had no heart issues prior to the 2016 back surgery. The medical evidence shows that the Veteran suffered a myocardial infarction shortly following the back surgery. Since then, the Veteran has had heart issues requiring medication. Based on the Veteran's medical history being void of any heart issues prior to the January 2016 back surgery and the sequence of events on the day of the back surgery in January 2016, Dr. R.H. has alluded to the fact that the stress of the back surgery caused the cardiac issues shortly following the surgery. (Continued on next page) Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's heart condition was caused by his service-connected lumbar spine disability. Accordingly, service connection for a heart condition is warranted on a secondary basis. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, 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.