Citation Nr: 0813003 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 04-12 141 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic demyelination/small vessel disease. 2. Entitlement to service connection for a chronic acquired heart disorder. 3. Entitlement to service connection for chronic tinnitus. 4. Entitlement to service connection for a chronic seizure disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active service from December 1970 to December 1973 and from March 1987 to September 1987. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the St. Louis, Missouri, Regional Office (RO) which, in pertinent part, denied service connection for chronic tinnitus. In August 2004, the RO, in pertinent part, determined that new and material evidence had not been received to reopen the veteran's claim of service connection for a chronic heart disorder and denied service connection for both a chronic seizure disorder and chronic demyelination to include small vessel disease. In June 2006, the Board determined that new and material evidence had been received to reopen the veteran's claim of entitlement to service connection for a chronic heart disorder and remanded the issues of the veteran's entitlement to service connection for chronic demyelination/small vessel disease, a chronic heart disorder, chronic tinnitus, and a chronic seizure disorder to the RO for additional action. FINDINGS OF FACT 1. Service connection is currently in effect for migraine headaches, endometriosis, and vertigo. 2. The veteran's chronic demyelination/small vessel disease has been shown to be etiologically related to her service-connected migraine headaches. 3. Mitral valve prolapse and patent foramen ovale are congenital disabilities for which Department of Veterans Affairs compensation benefits may not be established. 4. A chronic acquired heart disorder was not objectively shown during active service or at any time thereafter. 5. Chronic tinnitus was not manifested during or for many years after active service and the veteran's chronic tinnitus has not been shown by competent evidence to have originated during active service. 6. The veteran's chronic tinnitus has not been shown by competent evidence to be etiologically related to her service-connected disabilities. 7. A chronic seizure disorder was not objectively shown during active service or at any time thereafter. CONCLUSIONS OF LAW 1. Chronic demyelination/small vessel disease was incurred proximately due to or as the result of the veteran's service-connected migraine headaches. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310(a), 3.326(a) (2007). 2. Service connection may not be granted for mitral valve prolapse and/or patent foramen ovale. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303(c), 3.326(a), 4.9 (2007). 3. A chronic acquired heart disorder was not incurred in or aggravated by active service and may not be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2007). 4. Chronic tinnitus was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.326(a) (2007). 5. Chronic tinnitus was not proximately due to or the result of the veteran's service-connected disabilities. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2007). 6. A chronic seizure disorder was not incurred in or aggravated by active service and may not be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.326(a) (2007). 7. A chronic seizure disorder was not proximately due to or the result of the veteran's service-connected disabilities. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. In reviewing the veteran's claims for service connection, the Board observes that the RO issued VCAA notices to the veteran in April 2004, May 2004, July 2004, and June 2006 which informed the veteran of the evidence generally needed to support a claim for service connection and the assignment of an evaluation and effective date of an initial award of service connection; what actions she needed to undertake; and how the VA would assist her in developing her claims. Such notice effectively informed her of the need to submit any relevant evidence in her possession. The April 2004, May 2004, and July 2004 VCAA notices were provided prior to the August 2004 rating decision which determined that new and material evidence had not been received to reopen the veteran's claim of service connection for a chronic heart disorder and denied service connection for chronic demyelination/small vessel disease and a chronic seizure disorder. The VA has attempted to secure all relevant documentation. The veteran was afforded multiple VA examinations for compensation purposes. The examination reports are of record. The Board remanded the veteran's claims to the RO for additional development of the record. There remains no issue as to the substantial completeness of the veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2007). In reference to the issue of service connection for chronic tinnitus, the Board observes that the veteran was not provided with a VCAA notice prior to the January 2003 rating decision which denied that claim. Nevertheless, the Board finds that the veteran has had adequate opportunity to advance a substantial complete claim. She has demonstrated actual understanding of the laws and regulations governing her appeal through her written statements and the documentation offered in support of her claim. Thus, no prejudice has accrued to the veteran or her appeal through the deficient timing of the initial VCAA notice. Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__ (U.S. Mar. 21, 2008) (No. 07A588). II. Service Connection Service connection may be granted for chronic disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2007). Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation providing for compensation benefits. 38 C.F.R. §§ 3.303(c), 4.9 (2007). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and cardiovascular-renal disease and/or an organic disease of the nervous system becomes manifest to a degree of ten percent within one year 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2007). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for migraine headaches, endometriosis, and vertigo. A. Chronic Demyelination/Small Vessel Disease The veteran's service medical records make no reference to chronic demyelination/small vessel disease. A December 2003 VA magnetic resonance imaging study of the head revealed findings consistent with white matter "demyelination or less likely small vessel ischemic changes." In her May 2004 claim for service connection, the veteran advanced that service connection was warranted for demyelination/small vessel disease secondary to her service-connected migraine headaches. At an October 2006 VA examination for compensation purposes, the veteran was diagnosed with "white matter intensities secondary to and associated with migraine, but without neurological deficit." The examiner commented that: The white matter intensities for which the term chronic demyelination/small vessel disease (sic) is present in a substantial number of patients with migraine and at the present time there is a great deal of controversy about the precise meaning. ... It is almost certain that this condition is associated with her migraine. ... It is, however, unclear when it began. It is not possible to indicate whether this had any relationship whatsoever to her military service and it is to be expected that the condition will progress over the course of time The Board has reviewed the probative evidence of record including the veteran's written statements on appeal. The veteran's chronic demyelination/small vessel disease has been shown to be etiologically related to her service-connected migraine headaches. In the absence of any objective competent evidence to the contrary and upon the resolution of reasonable doubt in the veteran's favor, the Board finds that service connection is now warranted for chronic demyelination/small vessel disease. B. Chronic Heart Disorder Naval treatment records dated in July 1987 note that the veteran had a history of a transient wandering atrial pacemaker and a "brief history of arrhythmia." A contemporaneous review of systems was reported to be negative. The veteran's transient wandering atrial pacemaker "resolved within 24 hours and did not require treatment at any time." A contemporaneous electrocardiographic study was reported to be normal. At her August 1987 physical examination for service separation, the veteran was found to exhibit no chronic heart or cardiac disabilities. In her December 1987 Veteran's Application for Compensation or Pension (VA Form 21-526), the veteran advanced that she initially manifested cardiac problems in 1987. She reported that she was treated for her cardiac disability at the Charleston, South Carolina, naval medical facilities. A July 1988 VA hospital summary indicates that the veteran presented a history of an irregular heartbeat. She subsequently underwent cardiac catheterization which revealed no atrial septal defect or mitral valve prolapse. A November 1989 VA treatment record states that the veteran had been treated for a prolapsed mitral valve for the preceding two years. VA clinical documentation dated in March 2004 indicates that the veteran had a history of a "known [patent foramen oval]. On electrocardiographic study, the veteran exhibited a patent foramen ovale (PFO) with evidence of a right-to-left shunt and an atrial septal aneurysm. Clinical documentation from Saint Louis University Hospital dated in July 2004 reports that the veteran underwent combined cardiac catheterization and PFO closure. At a July 2006 VA examination for compensation purposes, the veteran was diagnosed with mitral valve prolapse and PFO closure residuals. The examiner opined that: She has history of mitral valve prolapse that was diagnosed following military discharge. She currently has no mitral regurgitation or subjective symptoms from the mitral valve prolapse. ... [Patient] has a history of patent foramen ovale (PFO). ... PFO is a congenital disorder existing in 30% of the population. The great majority of the affected individuals are asymptomatic. [The veteran] was likely born with the PFO and atrial septal aneurysm. I believe that if modern imaging technology was available in 1988 the diagnosis would have been made at that time. ... Since PFO is a congenital disorder, it was more likely than not (greater than 50/50 probability) present at the time of her active duty. At the October 2006 VA examination for compensation purposes, the examiner commented that: The only congenital or developmental cardiovascular abnormality was the previously described mitral valve prolapse, about which nothing has been said for many years. This condition is common in the community and is ordinarily not a source of significant symptom. The patient no longer suffers a PFO. Amler stent having been inserted with closure of that congenital anomaly. In a December 2006 addendum to the report of the July 2006 VA examination for compensation purposes, the examiner clarified that: I have been asked to advance an opinion as to whether the veteran's PFO, although a congenital abnormality, increased in severity beyond its natural progression while in service or due to service-connected disabilities. ... PFO is a congenital abnormality existing in 27% of the population by autopsy studies and 10-12% by standard electrocardiogram. ... PFO was not second[ary] to any service-connected disabilities, furthermore, the PFO did not increase in severity due to any service-connected disability. PFO is a congenital abnormality present since birth, and was cured by closure in 2004. The clinical record establishes that the veteran has been diagnosed with both mitral valve prolapse and post-operative PFO residuals. Those disabilities have been determined by VA examiners to constitute congenital heart abnormalities. Congenital disabilities are not "diseases or injuries" for which disability compensation may be granted. 38 C.F.R. §§ 3.303(c), 4.9 (2007). A chronic acquired heart disorder was not shown during active service or at any time thereafter. Indeed, the veteran's claim is supported solely by her own written statements on appeal. The veteran advances that she sustained a chronic acquired heart disorder during or proximate to active service. However, the competent medical evidence from service and thereafter is against her claim. The Court has held that a lay witness is generally not capable of offering evidence involving medical knowledge such as the diagnosis or causation of a particular medical condition. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The veteran's written statements are thus insufficient to establish the existence of a chronic acquired heart disorder and/or an etiological relationship between the claimed disorder and either active service or her service-connected disabilities. Therefore, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for a chronic acquired heart disorder. C. Chronic Tinnitus The veteran's service medical records make no reference to chronic tinnitus. Clinical documentation from the Washington University School of Medicine dated in August 1998 indicates that the veteran complained of mild tinnitus. At a December 2002 VA examination for compensation purposes, the veteran complained of tinnitus of four years' duration and an occasional low-pitched hum in her left ear associated with a migraine. She reported that she worked "around aircraft noise" during active service. The veteran's claims files were not available for review by the examiner. The veteran was diagnosed with tinnitus. The examiner commented that: It is my opinion that that her bilateral sensorineural hearing loss and constant tinnitus are not related to her history of military noise exposure. It is also my opinion that her decreased hearing and tinnitus is (sic) not related to her history of migraines. In her February 2003 notice of disagreement, the veteran asserted that her chronic tinnitus was "secondary to the medications that I am on due to my migraines." In a December 2005 written statement, the accredited representative advanced that service connection for chronic tinnitus secondary to her service-connected migraine headaches was warranted. Chronic tinnitus was not shown during active service or for many years thereafter. No competent medical professional has attributed the onset of the claimed disorder to either active service, her claimed inservice noise exposure; and/or her migraine headaches and other service-connected disabilities. Indeed, such a relationship is expressly negated by the report of the December 2002 VA examination for compensation purposes. The veteran advances that she sustained chronic tinnitus as the result of her inservice aircraft noise exposure or, in the alternative, secondary to her service-connected migraine headaches. The veteran's claim is supported solely by her own written statements on appeal. The veteran is competent to state that she experienced noise exposure and tinnitus symptoms during active service. However, she is not capable of offering evidence involving medical knowledge such as the causation of her chronic tinnitus. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The competent medical evidence from service and thereafter is against the veteran's claim for service connection. There is no evidence of any complaints of tinnitus during or proximate to active service. The report of the December 2002 VA examination for compensation purposes expressly negates a causal relationship between the veteran's chronic tinnitus and both her claimed inservice noise exposure and her service-connected migraine. The veteran's lay written statements are insufficient to establish an etiological relationship between the claimed disorder and either active service or her service-connected disabilities. Therefore, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection for chronic tinnitus. D. Chronic Seizure Disorder The veteran's service medical records make no reference to a chronic seizure disorder. VA clinical documentation dated in January 2004 states that the veteran complained of episodic "true vertigo" with nausea and vomiting lasting between several minutes and almost an hour. She was referred to rule out a seizure disorder and/or "some form of epilepsy." Contemporaneous electroencephalographic studies revealed findings consistent with "an abnormal generalized paroxysmal disturbance of cerebral function." Treating VA medical personnel opined that it was "unlikely the episodes are seizures." At the October 2006 VA examination for compensation purposes, the examiner commented that: [The veteran] also has an abnormal electroencephalogram, which is a common feature in some patients with migraine and does not necessarily mean that she suffers from epilepsy, which has in fact not been detected. The veteran was not diagnosed with a chronic seizure disorder during active service or at any time thereafter. While she has been shown to exhibit abnormal electroencephalographic studies, no chronic seizure disorder has been identified on subsequent follow up neurological evaluation. Absent a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Hensley v. Brown, 5 Vet. App. 155, 158 (1993). The veteran advances that she sustained a chronic seizure disorder secondary to her service-connected migraine headaches. The veteran's claim is supported solely by her own written statements on appeal. While she can report on seizure-like symptoms which she observed, the veteran is not competent to advance a diagnosis of a chronic seizure disorder. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of any objective clinical evidence of a chronic seizure disorder, the Board concludes that a preponderance of the evidence is against the veteran's claim of entitlement to service connection. ORDER Service connection for chronic demyelination/small vessel disease is granted. Service connection for a chronic heart disorder is denied. Service connection for chronic tinnitus is denied. Service connection for chronic seizure disorder is denied. ______________________________________________ STEVEN L. COHN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs