Citation Nr: 0637626 Decision Date: 12/04/06 Archive Date: 12/12/06 DOCKET NO. 00-11 799 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a kidney disorder. 2. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 3. Entitlement to service connection for a heart disorder with atrial fibrillation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Katz, Associate Counsel INTRODUCTION The veteran served on active duty from October 1950 to October 1952. In November 1999 the RO, in pertinent part, denied the veteran's claim as to whether new and material evidence had been received sufficient to reopen the veteran's claim for service connection for a kidney disability. In August 2001 the RO, again in pertinent part, denied the appellant's claims of entitlement to service connection for a heart condition with inoperative atrial fibrillation and COPD. In October 2004, the Board of Veterans' Appeals (Board) reopened the veteran's claim for service connection for a kidney disability and remanded that claim, along with the veteran's claims for service connection for a heart condition with inoperative atrial fibrillation and COPD to the RO for further development. The Board again remanded the three claims in February 2006 for further development. The RO subsequently denied each claim in a supplemental statement of the case issued in April 2006. As the claim for service connection for a kidney disorder is in need of further development, this claim is discussed in the REMAND section below. FINDINGS OF FACT 1. COPD was not present in service; was not objectively manifested for years after service; and is not otherwise shown to be related to service. 2. A heart disorder with atrial fibrillation was not present in service; was not objectively manifested for years after service; and is not otherwise shown to be related to service. CONCLUSIONS OF LAW 1. COPD was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2006). 2. A heart disorder with atrial fibrillation was not incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 , 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA is required to notify the veteran of: (1) the information and evidence needed to substantiate and complete his claim, (2) what part of that evidence he is responsible for providing, (3) what part of that evidence VA will attempt to obtain for him, and (4) the need to send the RO any additional evidence that pertains to his claim. 38 C.F.R. § 3.159. Subsequent to its initial adjudication of the claims for service connection for service connection for a heart condition with inoperative atrial fibrillation and COPD in October 1999, the Veterans' Claims Assistance Act (VCAA) was promulgated. In May 2001 the RO sent the veteran a letter explaining the effect the VCAA would have on the claims process. This letter did not completely notify the veteran in that it was missing the fourth element of the duty to notify as outlined above. While this letter was not complete in notifying the veteran, the veteran has not been prejudiced by lack of notification for he was sent a complete notification letter in November 2004. This letter was followed by the RO's adjudication of the claims in a supplemental statement of the case. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. Here, the RO obtained the veteran's service medical records, private medical records indicated by the veteran to be relevant, VA treatment records, and afforded the veteran one VA examinations regarding each of his claims. There does not appear to be any other evidence, VA or private, relevant to the claims at this time and the veteran has submitted a written statement to that effect in August 2006. The veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. The veteran has not been prejudiced by inadequate or untimely notice and any defect with respect to the notice requirement in this case was harmless error. The evidence and information of record, in its totality, provides the necessary information to decide the case at this time. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 4.2. Any additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The appellant has been provided the appropriate notice and assistance prior to the claims being adjudicated by the Board and prior to the last adjudication by the RO. Therefore, the veteran is not prejudiced by the Board's adjudication of his claims at this time. See Overton v. Nicholson, No. 02-1814 (U.S. Vet. App. September 22, 2006). II. Claims for Service Connection The veteran claims that COPD and a heart disorder began in service and should therefore be service-connected. Service connection will be granted if the veteran suffers from a disability resulting from an injury suffered or disease contracted in service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge may still be service connected if all evidence, including that pertinent to service, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be: 1) a medical diagnosis of a current disability; 2) medical or, in certain cases, lay evidence of in-service occurrence of a disease or injury; and 3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Where a disease is diagnosed as chronic during service or where continuity of symptomatology from service shows the disease to be chronic in nature, subsequent manifestations of the same chronic disease at any later date, however remote, are to be service connected under 38 C.F.R. § 3.303(b). In addition, under 38 C.F.R. § 3.307(a)(3), a veteran who manifests within one year of separation from service, a disease that is considered to be chronic as listed in 38 C.F.R. § 3.309 to a degree of 10 percent or more shall be service connected, the absence of any findings of that particular disease during service notwithstanding. 38 C.F.R. § 3.309(a) lists the diseases to be considered chronic to include cardiovascular-renal disease. In adjudicating a claim, the Board determines whether 1) the weight of the evidence supports the claim or 2) the weight of the positive evidence in favor of the claim is in relative balance with the weight of the negative evidence against the claim. The appellant prevails in either of those situations. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Chronic Obstructive Pulmonary Disease There was no indication of treatment or complaints regarding COPD during service. The veteran's post service medical records indicate treatment for a pulmonary disorder beginning in August 1999. While there are several notes regarding treatment for this pulmonary disorder during the period following, there are no etiological opinions regarding the veteran's COPD in these records. In a September 2000 statement, a private physician, Craig M. Bash, M.D. reported that he conducted a review of the veteran's medical records and rendered an opinion in September 2000 concerning a nexus between the veteran's current COPD and his service. He concluded his statement by stating: It is my opinion that this patient's current problems with his thyroid, spine, kidneys and heart/lungs (and secondary respiratory difficulties) are all end stage disease that he either acquired, or aggravated during his service time because the initial symptoms of these disease's were all documented (see above) in his service medical record. While this physician apparently conducted a review of the veteran's medical records and his medical history as dictated by the veteran, he did not perform a physical examination of the veteran nor did he render a diagnosis of his own regarding the veteran's COPD disability. More importantly, while he concluded by saying that all diseases were documented in service, he did not point to any lung or respiratory complaint or finding during service, to support this opinion with reference to COPD. The veteran underwent a more probative and more recent VA examination in March 2006 at which time he was diagnosed as having a mild to moderate COPD that is well compensated on bronchodilator therapy. After numerous diagnostic tests and a thorough review of the veteran's medical history, the doctor concluded in stating that "it is less likely than not that his current pulmonary problems were manifested during military service, caused by or a result of military service or any treatment received during military service." The doctor noted that he had reviewed the veteran's claims file and acknowledged the pertinent medical evidence found in the claims file along with medical history taken from the veteran at the time of the examination in the examination report prior to issuing a diagnosis and etiological opinion. Despite the veteran's contentions that he currently suffers from COPD that is related to service, the weight of the medical evidence supports a finding that there is no such relationship. Dr. Bash's opinion is far outweighed by the VA examiner's opinion for the reasons discussed above. While the veteran may sincerely believe that his current COPD is related to service, as a lay person, he is not competent to render a medical diagnosis or etiological opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For the reasons discussed above, the preponderance of the evidence establishes that the veteran's COPD has no relationship to service. 38 U.S.C.A. § 5107(b). Heart Disorder with Inoperable Atrial Fibrillation Service medical records reflect no complaints or findings concerning a chronic heart disorder. The veteran's post- service medical records indicate an echocardiogram performed in 1997 which showed atrial fibrillation. In 2000 an echocardiogram showed a dilated left ventricle and in 2002 the veteran was given a pacemaker. No etiological opinion regarding the veteran's current heart disorder is given in these records. In the September 2000 statement from Dr. Bash, he referred to one blood pressure reading of 124/68 taken in August 1950 and two readings of 140/80 in June 1951. He also referred to a service record dated April 11, 1952 showing sinus arrhythmia. Dr. Bash stated his conclusion relative to heart disease as follows: Long standing hypertension is a well-known cause of cardiac disease and this disease can be asymptomatic "...for the first 15-20 years even as it progressively damages the cardiovascular system..."Braumwald page 807 This patient had elevated pressures in the 1950's and presented with advanced cardiac diseases in the 1990's. It is my opinion that this patient's service-acquired hypertension directly contributed to his current cardiovascular disease.... Facially, this opinion supports the veteran's claim, but this opinion is less than convincing when considered with the objective evidence of record and the service medical records he argues supports his opinion. First, it is noted that he refers to a sinus arrhythmia being reported on an electrocardiogram in April 11, 1952. He fails to note, however, that the same electrocardiogram was interpreted as within normal limits. Moreover, another electrocardiogram taken a few days later was described as showing normal sinus rhythm. With respect to the hypertension question, he apparently bases this on a definition he obtained in a medical text wherein systolic blood pressure 140-159 are considered borderline isolated hypertension. He fails to mention that blood pressure at the time of separation examination in October 1952 was listed as 110/60 and he never pointed to any objective medical evidence that essential hypertension was shown at any time after service. Moreover, under VA regulations, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For rating purposes the term hypertension means that the diastolic blood pressure is predominantly 90 or greater and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or more. 38 C.F.R. § 4.104. The veteran underwent a more probative and more recent VA examination in March 2006 at which time he was diagnosed as having chronic atrial fibrillation that is well compensated currently although the doctor acknowledged previous cardiac tests indicating a mild, global reduction of the left ventricular contractility which appeared to be resolved at the time of the examination and acknowledged that the veteran had a cardiac pacemaker for episodes of bradycardia that was stable at the time of the examination. The doctor continued stating: The veteran did not have essential hypertension during his active-duty military service. After examining this veteran and his medical records and the results of his diagnostic testing, it is my opinion that it is less likely than not that his atrial fibrillation was manifested during service, caused by or a result of military service or any medical treatment received during his active-duty service." The doctor noted that he had reviewed the veteran's claims file and acknowledged the pertinent medical evidence found in the claims file along with medical history taken from the veteran at the time of the examination in the examination report prior to issuing a diagnosis and etiological opinion. Specifically, the doctor noted that not only were his service medical records silent with regards to treatment for a heart disorder but they were "noteworthy for the documentation of numerous blood pressure readings" and that "this examiner found no documentation of abnormally elevated blood pressures during the veteran's active military service." There is no evidence of a cardiovascular problem within one year of service and no evidence of symptomatology for the cardiovascular disorder described above until 1997, 45 years after separation. This lengthy period without complaint or treatment is evidence that there has not been a continuity of symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Despite the veteran's contentions that he currently suffers from a heart disorder that is related to service, the medical evidence discussed above clearly weighs in favor of a denial of the claim. While the veteran may sincerely believe that his current heart disorder is related to service, as a lay person, he is not competent to render a medical diagnosis or etiological opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). For the reasons discussed above, the preponderance of the evidence establishes that the veteran currently has no heart disorder as a result of service. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for COPD is denied. Entitlement to service connection for a heart disorder with inoperable atrial fibrillation is denied. REMAND The veteran's service medical records do indicate complaints or treatment regarding a genitourinary disorder in that several urinalysis studies were taken and a retrograde examination of the genitourinary tract displayed deformity of calyces in both kidneys. The veteran was diagnosed with chronic pyelonephritis during service and was diagnosed as having chronic cystitis and mild chronic posterior urethritis in May 1951. The veteran's post-service medical records indicate treatment regarding a kidney disorder beginning in 1990. In 1999, the veteran underwent an examination which showed hyperplasia with no evidence of malignancy. In 2004 a private physician diagnosed the veteran as having benign prostatic hypertrophy with bladder outlet obstruction symptoms and bladder instability. No etiological opinion is given regarding the veteran's kidney disorder in these records. The veteran underwent a VA examination in March 2006 at which time he was diagnosed as having a benign prostatic hypertrophy with a previous transurethral resection of prostate with moderate symptoms. The doctor continued in stating that "this is a common condition in elderly men and was less likely than not manifested during service, caused by, or related to military service." The doctor noted that he had reviewed the veteran's claims file and acknowledged the pertinent medical evidence found in the claims file along with medical history taken from the veteran at the time of the examination in the examination report prior to issuing a diagnosis and etiological opinion; however the doctor did not specifically state whether the veteran's current kidney disorder was related to the diagnosis of pyelonephritis in service and this must be done. Accordingly, the case is REMANDED back to the RO via the Appeals Management Center for the following action: 1. Schedule the veteran for a VA examination. Ask the examiner to obtain a detailed medical history from the veteran concerning treatment of his kidney condition during and after service. The examiner should review the entire case file in conjunction with the examination and perform any tests deemed necessary and answer the following questions: a. Does the veteran currently have a kidney disorder? b. If so, is it at least as likely as not that his current kidney disorder is related to service, to include the in- service diagnosis of chronic pyelonephritis? 2. Review the examination report and if it is inadequate for any reason, return it for revision. 3. Thereafter, if the claim on appeal remains denied, provide the veteran and his representative with a supplemental statement of the case which summarizes the evidence and analyzes all pertinent legal authority. Allow appropriate time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ____________________________________________ C. W. SYMANSKI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs