Citation Nr: 0215820 Decision Date: 11/06/02 Archive Date: 11/14/02 DOCKET NO. 02-01 567 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a coronary artery disease, as secondary to service-connected post-traumatic stress disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran (appellant) served on active duty from April 1965 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate his claim, and has obtained and fully developed all evidence necessary for the equitable disposition of the claim. 2. The veteran's coronary artery disease is reasonably related to the veteran's service-connected PTSD. CONCLUSION OF LAW Coronary artery disease is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. §§ 5103A, 5107(b) (West 1991 & Supp. 2002); 66 Fed. Reg. 45,630- 32 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159); 38 C.F.R. §§ 3.102, 3.310 (2002); Allen v. Brown, 7 Vet. App. 439 (1995. REASONS AND BASES FOR FINDINGS AND CONCLUSION There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). Among other things, this law redefines the obligations of the Department of Veterans Affairs (VA) with respect to notice and the duty to assist. This change in the law is applicable to all claims filed on or after the date of enactment of the Veterans Claims Assistance Act of 2000, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. § 5103A (West Supp. 2002); See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). VA issued regulations to implement the VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a)). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(b) which is effective August 29, 2001. Except for the amendment to 38 C.F.R. § 3.156(a), the second sentence of 38 C.F.R. § 3.159(c)(4)(iii), VA stated that "the provisions of this rule merely implement the VCAA and do not provide any rights other than those provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly, in general where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied. Under the new legislation, the VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West Supp. 2002). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West Supp. 2002). The Board has considered the effect of this new legislation as it pertains to the appellant's claim and finds that no further development is necessary as to this issue. Bernard v. Brown, 4 Vet. App. 384 (1993). Specifically, the Board notes that medical records have been obtained documenting the veteran's complaints, the veteran has been afforded VA examinations, and medical opinions have been associated with the claims file addressing this issue. The veteran has been informed via letters from the RO, and a statement of the case of the evidence necessary to substantiate his claim. In this regard, in March 2001, the RO contacted the veteran and notified him of the evidence needed to establish entitlement to the benefit sought, and what the RO would obtain, as well as what evidence was needed from the veteran and what he could do to help with his claim. No further assistance in this regard appears to be warranted. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board concludes that there is no indication that there are additional documents that have not been obtained and that would be pertinent to the issue currently being decided. The appellant and his accredited representative have been accorded the opportunity to present evidence and argument in support of the claim. The RO made all reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate his claim. No reasonable possibility exists that any other assistance would aid in substantiating the claim and the RO met its duty to assist the appellant. 38 U.S.C.A. § 5103A (West Supp. 2002). No further development is required in order to comply with VA's duty to inform and to assist. Laws and Regulations Under the basic law, service connection may be established for a disability resulting from disease or injury incurred or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West Supp. 2002). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (2002). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2002). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). In Allen v. Brown, 7 Vet. App. 439 (1995), The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter, "the Court") held that the term "disability", as used in 38 U.S.C.A. § 1110, refers to impairment of earning capacity and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected disability, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected disability, shall be service-connected. Thus, pursuant to 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.310(a), when aggravation of a veteran's nonservice- connected disorder is proximately due to or the result of a service-connected disability, such veteran shall be compensated for the degree of disability, but only that degree over and above the degree of disability existing prior to the aggravation. Where a veteran served 90 days or more during a period of war and coronary artery disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113,1137 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). The Court has further held that a lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Moreover, when all the evidence is assembled, the 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 the preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). It is left to the Board to sort out the evidence, not all of which is consistent. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (Board has fact-finding authority to assess the quality of the evidence before it, including the duty to analyze its credibility and probative value, as well as authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Moreover, the Board acknowledges that it must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The Board notes that it is the Board's responsibility to weigh the credibility and probative value of the evidence and, in so doing, the Board may accept one medical opinion and reject others. Schoolman v. West, 12 Vet. App. 307, 310- 11 (1999); Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). It is also the responsibility of the Board to determine the probative weight to be ascribed as among multiple medical opinions in a case, and to state reasons or bases for favoring one opinion over another. The probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Discussion Initially, the Board notes that the record does not show, and the veteran does not contend, that his coronary artery disease is related to service. There is no showing of a cardiac disability in service or within the first post- service year. A cardiac disability is not diagnosed until the 1980's, many years after service. Thus, direct service connection is not warranted. The veteran rather contends that his coronary artery disease is related to his service- connected PTSD. In order to establish service connection on a secondary basis, there must be evidence of a current disorder, a service-connected disorder, and a nexus between the two disabilities, established by competent medical evidence. 38 C.F.R. § 3.310(a). See Reiber v. Brown, 7 Vet. App. 513 (1995), Lathan v. Brown, 7 Vet. App. 359, 365 (1995). In addition, service connection is permitted for aggravation of a non-service- connected disability caused by a service- connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (". . . when aggravation of a veteran's non-service- connected condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability . . . over and above the degree of disability existing prior to the aggravation."). Here, the veteran has been diagnosed with a coronary artery disease, status post myocardial infarction on VA examinations as well as in private medical records. In addition, the veteran is service connected for PTSD. Thus, the necessary evidence needed in order to grant this claim is competent medical evidence linking the disabilities either by causation or by aggravation. In an April 1997 letter, John C. Holmes, M. D. stated that the veteran's PTSD was not the cause of his coronary heart disease, although over the years, it could be an aggravating factor. It is noted that in February 2000, a VA examiner diagnosed coronary heart disease, quite severe, and stated that the veteran's PTSD exacerbated his coronary heart disease by putting undo metabolic demand on the heart which actually brought out the anxiety and PTSD which enhanced the coronary artery disease and made it much worse. It was also stated that it might even be possible that the original myocardial infarction was due to the PTSD. On VA examination in June 2000, the examiner stated: Please note that the patient's atherosclerotic heart disease is multifactorial in nature. No doubt his 15 year history of diabetes mellitus, 15 year history of essential hypertension, and remote very heavy smoking history are primary contributing factors to his heart disease. It is unlikely that the veteran's post traumatic stress disorder caused his first myocardial infarction. Secondarily, given his fairly well controlled angina that is specifically related to physical exertion and not psychological stress, it is unlikely that his post traumatic stress disorder is significantly exacerbating his coronary artery disease at this time. In June 2001, the veteran was examined by VA. The examiner stated that the claims file had been reviewed, and that additional history was provided by the veteran. The veteran was examined and diagnostic studies were obtained. Coronary artery disease was diagnosed. The examiner stated that after a thorough review of the entire claims file, as well as obtaining a history and examining the veteran, it was his opinion that it was unlikely that the veteran's coronary artery disease was causally linked to his PTSD. It was also stated that it was unlikely that the veteran's coronary artery disease was permanently aggravated by his PTSD. It was stated that the veteran's coronary artery disease is attributable to his known risk factors of family history of hypertension, diabetes and smoking. The Board has considered all of the evidence in this case including all medical opinions. Evidence favorable to the veteran consists of an April 1997 letter and a February 2000 VA examiner's opinion. It is noted that in the April 1997 letter, the examiner indicated that the PTSD could be an aggravating factor (emphasis added). The examiner noted that the veteran had been treated at his office since 1994. The Board notes that the examiner did not indicate that the veteran's complete records had been reviewed. In addition, the opinion was speculative and no rationale was provided for the opinion. Thus, this opinion, in and of itself, is not a sufficient basis to grant service connection. 38 C.F.R. § 3.102 (2002) provides that service connection may not be based on a resort to speculation or even remote possibility, and a number of Court cases have provided additional guidance as to this aspect of weighing medical opinion evidence. See Davis v. West, 13 Vet. App. 178, 185 (1999) (any medical nexus between the veteran's in-service radiation exposure and his fatal lung cancer years later was speculative at best, even where one physician opined that it was probable that the veteran's lung cancer was related to service radiation exposure); Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999) (treating physician's opinion that veteran's time as a prisoner of war "could" have precipitated the initial development of his lung condition found too speculative); Bostain v. West, 11 Vet. App. 124, 127-28 (1998) (private physician's opinion that veteran's preexisting service- related condition may have contributed to his ultimate demise too speculative to be deemed new and material evidence to reopen cause of death claim); Moffitt v. Brown, 10 Vet. App. 214, 228 (1997) (physician's opinion that "renal insufficiency may have been a contributing factor in [veteran's] overall medical condition" too speculative to constitute new and material evidence to reopen cause of death claim); Perman v. Brown, 5 Vet. App. 237, 241 (1993) (an examining physician's opinion to the effect that he cannot give a "yes" or "no" answer to the question of whether there is a causal relationship between emotional stress associated with service-connected post- traumatic stress disorder and the later development of hypertension is "non-evidence"); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection). The VA examiner in February 2000 opined that the veteran's PTSD exacerbated his coronary heart disease, and might have been caused by the PTSD. It is noted that the examiner did review the claims file, and offered rationale for the opinion. This evidence is highly credible and favorable to the veteran. On the other hand, there are two examination reports that are unfavorable to the veteran. A VA examiner in June 2000 reported that there was no causal relationship between the veteran's coronary artery disease and PTSD, and that the disability was not exacerbated by PTSD. The examiner provided reasoning for this finding, citing the veteran's history and the overall medical findings. This examiner did not have complete claims file available for review, but indicated that local VA records were reviewed. This evidence is thus of some limited probative value. The veteran was examined by VA in June 2001, and that examiner has opined that the veteran's coronary artery disease is not related to his service-connected PTSD. It was indicated that the claims file had been reviewed by the examiner. The veteran was examined by the VA clinician and the report is of record. Diagnostic studies were performed. The examiner provided reasoning for his opinion by stating that the coronary heart disease was due to his known risk factors. The Board notes that this opinion was based on examination of the veteran, and a review of the veteran's medical records. The examiner provided reasoning for his finding. Therefore this unfavorable determination is highly credible and probative. As noted however, the February 2000 examiner also based his opinion on the medical records and examination of the veteran. Rationale was also provided. Each of these opinions is highly probative of the issue on appeal. The Board has a legal obligation to balance the evidence. Based on the above, and reviewing the evidence in its totality, the Board finds that the evidence reasonably supports a finding that the veteran has coronary artery disease that is aggravated by his PTSD. In effect, the most probative evidence for and against the claim, as summarized above, is in relative equipoise, and thus the doubt must be resolved in the veteran's favor. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, in assessing the evidence in support of the claim and that which is against, and in light of the holding in Allen, the Board must find that the probative evidence is at least in equipoise, and that secondary service connection is warranted. ORDER Service connection for coronary artery disease is granted. WARREN W. RICE, JR. Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.