Citation Nr: 0300364 Decision Date: 01/08/03 Archive Date: 01/28/03 DOCKET NO. 01-04 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a heart disorder, with hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. L. Shaw, Counsel INTRODUCTION The veteran had active military service from September 1939 to November 1945, from November 1946 to November 1948, and from April 1957 to April 1959, followed by numerous periods of active duty for training associated with Reserve service. The veteran was transferred to the Retired Reserve without pay from August 1, 1972, and to the Retired Reserve with pay from June 25, 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November, 2000, rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a disability classified as "aortic arteriosclerosis with hypertension, congestive heart failure, and dilated cardiomyopathy." On preliminary review of the appeal in June 2001, the Board remanded the case to the RO for additional evidentiary development and compliance with the Veterans Claims Assistance Act of 2000. After completion of actions taken pursuant to the remand, the RO confirmed its prior denial of service connection and returned the case to the Board for further appellate review. The disability for which service connection is sought is a complex cardiovascular disability which has several components, including hypertension, aortic arteriosclerosis, congestive heart failure, dilated cardiomyopathy, atrial fibrillation, and valve disease. Although the issue addressed by the RO and by the Board in its June 2001 remand did not refer specifically to atrial fibrillation and mitral valve disease, these components of the disability are fully described in the medical record and have been considered in the adjudication at the RO and may be addressed by the Board herein without prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board has recharacterized the issue on appeal as entitlement to service connection for heart disease, with hypertension. FINDINGS OF FACT 1. The veteran has been notified of the evidence needed to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. Hypertension and atrial fibrillation were not manifest during the first or the second of the veteran's three periods of active military service. 3. Atrial fibrillation and hypertension preexisted the veteran's third period of active military service and did not increase in severity therein. 4. Arteriosclerotic cardiovascular disease, valvular heart disease, congestive heart failure and dilated cardiomyopathy were not manifest during any of the veteran's three periods of active military service or until a number of years after such service. 5. Arteriosclerotic cardiovascular disease, valvular heart disease, congestive heart failure and dilated cardiomyopathy disorders are not shown to have had their onset during a period of active duty for training certified by the service department. CONCLUSIONS OF LAW 1. Atrial fibrillation and hypertension were not incurred in or aggravated by either of the first two of the veteran's three periods of active military service and may not be presumed to have been incurred in such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107, 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). 2. Atrial fibrillation and hypertension preexisted the veteran's third period of active military service and were not aggravated therein. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107, 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.304, 3.306 (2002). 3. Arteriosclerotic cardiovascular disease, mitral valve disease, congestive heart failure and dilating cardiomyopathy were not incurred in or aggravated by active military service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107, 7104 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary matter -- the VCAA During the pendency of this appeal, Congress enacted the Veterans Claims Assistance Act of 2000 (the VCAA), which redefines VA obligations with respect to notice and duty to assist. Regulations implementing the VCAA have been enacted. The VA issued regulations to implement the VCAA in August 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The VCAA is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. Except for provisions pertaining to claims to reopen based upon the submission of new and material evidence, which are not applicable in the present appeal, the implementing regulations are also effective November 9, 2000. In this case, therefore, the VCAA and its implementing regulations are applicable. See Holliday v. Principi, 14 Vet. App. 280 (2000) (the Board must determine whether the various provisions of the VCAA apply to a particular claim). The applicable law and regulations and the inadequacy of the evidence of record as a basis for the granting of service connection for a cardiovascular disability were explained to the veteran in the statement of the case and in the subsequent supplemental statements of the case. Efforts have also been made to satisfy further notification requirements set forth in the United States Court of Appeals for Veterans Claims' (Court) decision in the case of Quartuccio v. Principi, 6 Vet. App. 183 (2002), which specifies that the veteran must be given notice of the evidence and information necessary to substantiate his claim and be informed whether he or the VA bears the burden of producing or obtaining such evidence. The record shows that in a letter dated in July 1999, the RO requested the veteran to provide evidence showing that the disability claimed had been treated since discharge from service and that it advised him that the best type of evidence would consist of statements from physicians who had treated him since service, including dates of treatment, findings and diagnoses. In a May 2002 letter, the RO provided the veteran a summary of the requirements of the VCAA. The letter advised that the information needed from him consisted of the name of each person, agency or company that had records that he believed would be helpful in deciding his claim, as well as the address, time frame covered, and the condition treated. Forms authorizing the release of private medical records to the VA were furnished with the letter. The letter advised the veteran that the RO would help him obtain material such as medical records, employment records, or records from Federal agencies provided that he gave enough information to enable the RO to request the records. The information in this letter explicitly delineates the manner and extent to which the responsibility for obtaining the evidence necessary to support the veteran's claim was to be allocated between the veteran and the RO. The Board finds that the explanation set forth therein is adequate to satisfy the Quartuccio requirements. The VCAA also requires VA to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for a benefit under a law administered by the Secretary of Veterans Affairs, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. VCAA, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2098 (2000) (codified at 38 U.S.C.A. § 5103A). With respect to the duty to assist, the record reflects that the RO has obtained all of the veteran's service medical records and has accorded him two physical examinations in connection with his claim, including an examination to obtain medical opinion addressing medical issues arising therein. The RO has attempted to obtain records relating to treatment for the veteran's cardiovascular disability and has on two occasions requested that the veteran identify the health care providers from whom records might be requested. The veteran has submitted a small quantity of medical evidence but has not provided the comprehensive itemization of his health care providers that a full development of the evidence would require. The disability at issue is of a nature, complexity and duration that would suggest that extensive documentation pertaining to it must exist, but the Board is unable to obtain such material without the active cooperation of the veteran and is under no obligation to do so. The duty to assist in the development and adjudication of a claim is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), aff'd on reconsideration 1 Vet. App. 406 (1991); Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). In the absence of further information from the veteran, the Board is unable to identify any avenues of further evidentiary development that would be potentially fruitful in substantiating the veteran's claim. Accordingly, the Board finds that the notification and duty to assist provisions of the VCAA have been satisfied and that no further actions pursuant to the VCAA need be undertaken on the veteran's behalf. Factual Background Service department medical records pertaining to the first two of the veteran's three periods of active military service contain no reference to complaints or findings suggesting cardiovascular abnormality. The veteran was subsequently examined in January 1957 for purposes of enlisting in the Coast Guard Reserve. Blood pressure readings of 152/94 and 152/90 were reported. On examination of the heart, one premature contraction was heard. The veteran underwent a further examination in April 1957 for purposes of active duty. Blood pressures of 150/90, 132/78, and 154/92 were reported and it was recommended that the veteran have his blood pressure checked periodically. An occasional extrasystole was reported on examination of the heart. On examination for discharge, examination of the heart was reported as normal. Blood pressure was 130/90. The veteran underwent an examination on January 14, 1963, for the purpose of reenlistment in the Coast Guard Reserve. An irregular heart rhythm was noted, and the veteran was referred to the Scott Air Force Base Hospital for a cardiology consultation. The veteran was asymptomatic and was unaware of cardiac irregularity. He denied a history of rheumatic fever. Examination revealed an irregular cardiac beat. An electrocardiogram showed a coarse atrial fibrillation. The examiner concluded that the veteran had extremely mild mitral stenosis which was a pure lesion. It was considered to be statistically due to rheumatic heart disease in the past and to be undoubtedly the cause of the present atrial fibrillation. The veteran underwent a quadrennial examination in January 1967. Blood pressure readings of 140/100 and 136/98 were recorded. An electrocardiogram showed auricular fibrillation of unknown cause. Fibrillation was again noted on examination in December 1970. In January 1972, a chest X-ray revealed the heart to be at the upper limits of normal and the aorta was tortuous and calcified. The X-ray diagnoses were borderline heart size and aortic arteriosclerosis. Electrocardiogram showed atrial fibrillation with a variable ventricular rate. The veteran filed his original claim for service connection for a heart disorder in June 1999. In support of his claim he submitted medical records from the Missouri Baptist Medical Center. In the report of an April 1999 cardiology consultation, it was reported that the veteran had a history of atrial fibrillation and dilated cardiomyopathy (question ischemic) and presented with junctional bradycardia and a congestive heart failure exacerbation. He denied prior myocardial infarction, cardiac catheterization, or symptomatic coronary disease. The clinical impression was acute and chronic congestive heart failure, likely secondary to junctional bradycardia and associated chronotropic incompetence. The findings reported on an echocardiogram in May 1999 included mild left ventricular enlargement, left ventricular hypertrophy, severe by atrial enlargement, mild aortic root enlargement, mild aortic stenosis and insufficiency, severe eccentric mitral regurgitation and moderate eccentric tricuspid regurgitation. The veteran underwent a VA examination in July 1999. The diagnoses included hypertension, atrial fibrillation and dilated cardiomyopathy. At a VA cardiology examination performed in October 2001, the veteran related that during the period between 1966 and 1968 he had had a period of full time active duty with the Coast Guard working five days a week in uniform doing recruiting. On the basis of a detailed review of the medical evidence of record, the examiner expressed the conclusion that the veteran had hypertension which was as likely as not first manifest during the two years of duty in Coast Guard from 1966 to 1968. The report noted well documented atrial fibrillation starting in the late 1950's which preexisted the two-year period of active duty between 1966 and 1968 and which the examiner did not consider to be service connected. He reported that the veteran had cardiomyopathy which appeared to result from two contributing factors, hypertension and valvular heart disease. The examiner stated that mitral stenosis identified in 1963 was most likely due to rheumatic fever. He noted that a large reason for an ejection fracture of 50 percent reported on the May 1999 echocardiogram was due to both hypertension and a damaged valve. The examiner reported mitral valve disease manifested by an audible murmur consistent with mitral valve abnormality which he did not believe to be service connected. The examiner stated, in summarizing, that the veteran had hypertension, apparently for the first time, during the two-year period of active service from 1966 to 1968 and that the veteran had cardiac cardiomyopathy as a result of hypertension and mitral valve disease, with each condition contributing approximately 50 percent to causing the cardiomyopathy. He expressed the belief that atrial fibrillation and hypertension had contributed to the veteran's cerebrovascular accident. In a handwritten addendum to the report, the examiner noted that the veteran also had Reserve duty in the late 1950's and expressed the conclusion that atrial fibrillation and cerebrovascular accident would be secondary to this service. Legal criteria Service connection may be established for disability that is shown to have been incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110 (wartime), 1131 (peacetime) (West 1991 & Supp. 2002). If the disability is not shown to have been chronic in service, continuity of symptomatology after separation is required to support the claim. 38 C.F.R. § 3.303(b) (2002). A number of specific disabilities enumerated in the statute and in VA regulations, including heart disease and hypertension, are presumed by law to have been incurred in service if shown to have been manifest to a degree of 10 percent or more within one year following the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). Service connection is granted on the basis of aggravation where a disease or injury which preexisted service is shown to have undergone an increase in disability during service unless the increase is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (2002). Establishing service connection on the basis of aggravation requires: (1) evidence showing that a disease or injury preexisted service; (2) evidence showing an increase in disability during service sufficient to raise a presumption of aggravation of a disability; and (3) an absence of clear and unmistakable evidence to rebut the presumption of aggravation, which may include evidence that the increase in severity was due to the natural progress of the disability. 38 C.F.R. § 3.306(b) (2002). A disorder may be shown to have preexisted service if it is noted at entrance into service or, for disorders not noted at entrance, where clear and unmistakable evidence rebuts a legal presumption of sound condition at the time of entrance into service. 38 C.F.R. § 3.304(b)(1) (2002); Paulson v. Brown, 7 Vet. App. 466, 470 (1998); Crowe v. Brown, 7 Vet. App. 238, 245 (1995). A veteran is generally presumed to have entered service in sound condition. 38 U.S.C.A. § 1111 (West 1991 & Supp. 2002); 38 C.F.R. § 3.304(b) (2002). The presumption of sound condition attaches only "where there has been an induction examination in which the later complaint of disability was not detected." Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). VA regulations also provide that service connection may be granted for any disease diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2002). Discussion The cardiac disability for which service connection is claimed consists of a diverse assortment of manifestations that are not accounted for by any single underlying disease process. The veteran has systemic hypertension that the VA physician who examined the veteran in October 2001 considered to be a partial cause of cardiomyopathy manifested by enlargement of the heart. The veteran also has mitral valve disease and aortic fibrillation. The finding of aortic arteriosclerosis in 1972 is indicative of an arteriosclerotic process as well. Congestive heart failure has been documented since 1999. The earliest evidence of cardiac abnormality in the record is found in the report of a January 1957 examination that preceded the veteran's entry into his third period of active military service when a premature contraction was reported. On a subsequent examination of April 1957 at the time of entry into active service, an occasional extrasystole was noted. Although the medical term atrial fibrillation was not recorded until a Reserve examination of January 1963, it appears from the handwritten annotation to the October 2001 VA examination report that the examiner considered these findings to be due to atrial fibrillation. The presence of a manifestation of atrial fibrillation at the time of entrance into this period of service renders inapplicable the presumption that the veteran was in sound condition when he entered service. Since atrial fibrillation clearly preexisted this period of service, service connection can be granted only if it is shown to have undergone an increase in severity therein such as to constitute aggravation under the law. The records relating to this period of active service contain no reference to premature heart contractions or occasional extrasystole during the remainder of the period of service. In fact, no later reference to atrial fibrillation is found in the record until January 1963, when a finding of irregularity prompted a cardiology consultation. There is nothing in the medical record to suggest that the atrial fibrillation underwent any pathological advancement during the two-year period of active duty from 1957 to 1959. The same analysis applies to hypertension. The term "hypertension" refers to persistently high arterial blood pressure. Medical authorities have suggested various thresholds ranging from 140 mm. Hg systolic and from 90 mm. Hg diastolic. See Dorland's Illustrated Medical Dictionary 635 (26th ed. 1985). Similarly, for VA rating purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater. The term "isolated systolic hypertension" means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Code 7101, Note 1 (2002). By this definition, the blood pressure readings reported on examinations of January 1957, April 1957 and March 1959 would appear to establish the presence of hypertension during the duty period from 1957 to 1959, notwithstanding that the elevation of the veteran's blood pressure evidently did not prompt any concern or follow up testing until 1967 and that a diagnosis of hypertension was not recorded in medical records from that period. The record does not show any documented blood pressure readings that would demonstrate an increase in severity during this period such as to constitute aggravation under the law. The veteran maintains that his heart disability was first manifest during periods of active duty for training associated with Coast Guard Reserve service after 1959. The Court has held that to establish service connection for a disability (based on service incurrence, as distinguished from aggravation), the evidence must show (1) the existence of a current disability; (2) the existence of a disease or injury in service and, (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet.App. 542 (1992); Rabideau v. Derwinski, 2 Vet.App. 141 (1992); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). The service department has certified that Coast Guard Reserve service performed by the veteran after 1959 included periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). "Active duty for training" includes full-time duty performed for training purposes by Reserve or National Guard personnel. 38 U.S.C.A. § 101(22) (West 1991 & Supp. 2002); 38 C.F.R. § 3.6(c) (2002). The term "inactive duty training" includes duty (other than full-time duty) performed under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. It does not include duty performed as a temporary member of the Coast Guard Reserve. Annual training is an example of active duty for training, while weekend drills are inactive duty training. In the present case, the Coast Guard examinations which the veteran cites as evidence that cardiac disease was first documented during service were not performed during any of the periods certified by the service department as periods of active duty for training. The January 1963 examination was performed on the 14th of that month; his period of active duty training for 1963 extended from January 19 through February 2, 1963. The January 1967 examination was conducted several months before his 1967 active duty for training, which extended from May 1 to May 12, 1967. Similarly, his next quadrennial examination was performed in December 1970; his active duty for training took for 1970 place in May 1970. The veteran had no active duty for training at all in January 1972. Even if the records were to confirm that the notations on his examinations were the initial manifestations of cardiac disability, the fact that the examinations were not performed during a recognized ACDUTRA duty period would render the reports useless as evidence of incurrence in service for the purpose of satisfying the second of the above requirements. See Cuevas, Hickson, Id. Likewise, the reports are not shown to have been conducted during periods of inactive duty training. Even if they were, for service connection purposes, the law makes a clear distinction between active duty for training and inactive duty for training. An individual on inactive duty for training is entitled to disability compensation only for residuals of injuries suffered and not for disability based on disease. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993); 38 U.S.C.A. § 101(24) (West 1991); 38 C.F.R. § 3.6(a). In Brooks the Court upheld a precedent opinion of the VA General Counsel (O.G.C. Prec. 86-90 (July 18, 1990)) which held that a myocardial infarction was not an injury for purposes of service connection based on inactive duty for training service. The Veterans Benefits and Health Care Improvement Act of 2000, Pub. L. No 106-419, later amended 38 U.S.C.A. § 101(24) to include, within the definition of "active duty," periods of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 C.F.R. § 3.6 was also amended to reflect this change. 66 Fed. Reg. 184, pp. 48558-48561 (September 21, 2001). The evidence does not show, and the veteran does not claim, that he experienced an acute myocardial infarction, cardiac arrest, or cerebrovascular accident during a period of inactive duty training. While the veteran reports that he was on active duty for training throughout the period from 1966 to 1968, this assertion cannot be reconciled with the dates of active duty for training certified by the service department. The RO and the Board are bound by the dates so certified. The United States Court of Appeals for Veterans Claims (Court) has held that the essential facts concerning a claimant's military service, including those pertaining to active duty, active duty for training, or inactive duty for training, can be established only by official service department records. Cahall v. Brown, 7 Vet. App. 232, 237 (1994); Duro v. Derwinski, 2 Vet. App. 530, 532 (1992). There is no reason to question the information provided by the service department in response to the RO's request for certification of the dates of the veteran's service. If the veteran disagrees with the information contained in service department records, his remedy, if any, must be pursued with the Army Board of Correction of Military Records. The report of the October 2001 VA examination includes comments which, if deemed probative, would tend to support the granting of service connection for hypertension and atrial fibrillation. In finding that hypertension was incurred in service, the examiner accepted at face value the veteran's report that he had been on active duty for training for a two-year period from 1966 to 1968. That is not a correct statement of the veteran's duty status during that period, and the medical provider is not competent to nor does he have the legal authority to establish dates of recognized service. Therefore, the examiner's statement has no value as evidence to support the veteran's claim. It is well established that the weight of a medical opinion is diminished when the opinion is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 548 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The examiner in October 2001 states at one point that the veteran's atrial fibrillation was documented from the late 1950's during physical examinations. While this statement, read in isolation, could be deemed to suggest perhaps some relationship to service between 1957 and 1959, the Board finds that the further elaboration of the examiner's opinion makes it clear that he did not believe this to be the case. The examiner went on to indicate expressly that in his opinion atrial fibrillation and mitral valve disease were not service related. This opinion is consistent with the opinion expressed by the service department examiner in January 1963 who attributed atrial fibrillation to mild mitral stenosis that was in turn due to rheumatic heart disease in the past. There is no competent evidence of the presence of rheumatic heart disease during any period of active service. Accordingly, on the basis of all of the evidence of record, the Board finds that a preponderance of the evidence is against a finding that hypertension or any component of the veteran's current heart disability was incurred in or aggravated by active military service. Where a preponderance of the evidence is against the claim, such claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 2002). Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a heart disorder, with hypertension, is denied. Richard B. Frank 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.