Citation Nr: 0828822 Decision Date: 08/25/08 Archive Date: 09/02/08 DOCKET NO. 07-22 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for coronary artery disease (CAD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from September 1964 to September 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for CAD. In June 2008, the veteran provided testimony at a hearing before the undersigned at the RO. A transcript of the hearing is of record. FINDING OF FACT The veteran's CAD is due, at least in part, to his service- connected diabetes mellitus. CONCLUSION OF LAW CAD was incurred as a result of service-connected diabetes mellitus. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.300, 3.310 (2006 & 2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2008) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the veteran in substantiating his claim. Legal Criteria Service connection is provided for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has held that service connection can be granted under 38 C.F.R. § 3.310, for a disability that is aggravated by a service- connected disability and that compensation can be paid for any additional impairment resulting from the service- connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen. 71 Fed. Reg. 52,744-52,747. 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 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). VA has amended the provisions of 38 C.F.R. § 3.310 to incorporate the holding in Allen. 38 C.F.R. § 3.310 (2007). The amendments are not implicated in this case, because the grant of service connection is premised on a finding that a service connected disability was a proximate cause of the claimed CAD and not on the basis of aggravation. Analysis The veteran contends that his CAD is etiologically related to his service-connected diabetes mellitus. Records of private treatment show that the veteran was diagnosed with diabetes mellitus in 1989. He was diagnosed with CAD in May 1993 at which time he underwent a two vessel coronary artery bypass. In support of his claim, the veteran has provided letters from his private physicians dated in June 1993, September 2006, and March 2008 stating that his CAD was due to diabetes, hypertension, and history of smoking. The March 2008 letter indicates that the veteran's VA records and private medical records were reviewed prior to issuance of the medical nexus opinion. The record also contains the report of a July 2006 VA examiner who found that the veteran's CAD, status post coronary artery bypass surgery without sequelae, was not caused or related to diabetes mellitus as it preceded the diagnosis of diabetes. The Board finds that the evidence of record supports the grant of service connection for CAD as secondary to service- connected diabetes mellitus. The veteran has submitted three medical opinions in support of his claim, with the most recent opinion being rendered following review of the veteran's VA records. These opinions all state that the veteran's CAD is due, at least in part, to his service- connected diabetes. While the record also contains the opinion of the July 2006 VA examiner who concluded that the veteran's CAD was not caused or related to his diabetes, the examiner based his opinion on a finding that the veteran's CAD pre-dated the diagnosis of diabetes. In fact, the medical evidence of record shows that the veteran's diabetes was diagnosed in October 1989, four years before his initial diagnosis of CAD. The veteran also testified at his June 2008 hearing that he was diagnosed as having diabetes mellitus years before he was found to have CAD. This testimony is consistent with the record. As the most probative medical opinions are in favor of the claim, the evidence supports the grant of service connection for CAD. Accordingly, the claim is granted. ORDER Entitlement to service connection for CAD is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs