Citation Nr: 0809692 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-38 506A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a heart condition claimed as secondary to service-connected diabetes mellitus, Type II. 2. Entitlement to service connection for a bilateral eye condition claimed as secondary to service-connected diabetes mellitus, Type II. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from June 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the RO in St. Paul, Minnesota, which, in pertinent part, denied service connection claims for heart and eye disabilities. FINDINGS OF FACT 1. The veteran does not have a current diagnosis of a heart disability apart from hypertension. 2. On May 28, 2003, the veteran was informed that the claim of service connection for a bilateral eye condition was denied. The veteran was advised of his appellate rights. 3. After receiving a timely notice of disagreement (NOD), the veteran was provided a statement of the case (SOC) on September 17, 2004. 4. The first communication from the veteran or his representative addressing the claim of service connection for a bilateral eye condition was received in July 2005. CONCLUSIONS OF LAW 1. A heart condition, other than hypertension, was not incurred in or as a result of the veteran's active duty service and it is not proximately due to or the result of a service-connected disability, to include diabetes mellitus. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). 2. The veteran's substantive appeal to the May 2003 rating decision which denied service connection for a bilateral eye condition, was not timely filed, and the Board lacks jurisdiction to consider this issue. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 19.30, 20.101, 20.200, 20.202, 20.300, 20.302, 20.303, 20.304, 20.305 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act With respect to the veteran's heart condition claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, a letter dated in December 2002 fully satisfied the duty to notify provisions for the first three elements. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The VCAA notice provided to the veteran prior to adjudication failed to provide notice of the fourth element, viz., that the claimant should provide any evidence relevant to the claim in his possession to VA. See Pelegrini II, supra. Failure to provide pre-adjudicative notice of any of the four elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The December 2002 letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA and provided examples of the types of evidence, both medical and lay, that could be submitted. The Board concludes that a reasonable person could be expected to understand that any relevant evidence should be submitted during the development of the claim. See Pelegrini II, at 120-121. Accordingly, the Board concludes that the failure to provide VCAA compliant notice was harmless. The Board may proceed with consideration of the claim on the merits. See Sanders, supra. Since the Board has concluded that the preponderance of the evidence is against the claims for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The veteran was afforded a January 2005 medical examination to obtain an opinion as to whether the veteran had a heart condition, other than hypertension. Further examination or opinion is not needed on the heart condition claims because, at a minimum, there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service. This is discussed in more detail below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The veteran contends that he has a heart condition, other than hypertension, as a result of his diabetes mellitus. The Board notes that the veteran is already service connected for both hypertension and diabetes mellitus. For the reasons that follow, the Board concludes that service connection for a heart condition other than hypertension, to include as secondary to service connected diabetes mellitus, is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established on a secondary basis 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 of Appeals for Veterans Claims has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. Id. Furthermore, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and a cardiovascular disease becomes manifest to a degree of 10 percent within 1 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. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. All of the bases of service connection, direct, secondary and presumptive, require the presence of a current disability. On review of the evidence of record, the Board finds that the veteran does not have a current heart disability, other than hypertension. The veteran has submitted his treatment records from the Family Medical Center in Little Falls, Minnesota. The veteran has sought treatment from the Center for several years. The veteran was diagnosed with diabetes mellitus and hypertension and the records track his progress. The veteran had a November 2000 ECG which was normal. There is no indication of a cardiac disability, apart from hypertension. The veteran was seen for a heat related illness in July 2002 and received an electrocardiogram. The test showed an incomplete right bundle branch block and questionable rotation versus myocardial infarction. The July 2002 treatment note documenting this incident states that the veteran was experiencing "absolutely no symptoms" except for the day that he had heat exposure. The right bundle branch is an offshoot of the Bundle of His, which controls contraction of the right atrium and ventricle and, hence, cardiac function. See Dorland's Illustrated Medical Dictionary 260 (30th ed. 2003). The veteran underwent a stress echo test in August 2002, which showed a mild concentric left ventricular hypertrophy with overall normal left ventricular systolic function and trace tricuspid regurgitation with normal right sided pressure estimated. The trace tricuspid regurgitation was the only abnormal result on the right side of the veteran's heart. The bundle branch block was not demonstrated. The veteran received a VA cardiac examination for his hypertension in May 2004. The assessment did not find a heart disability beyond hypertension. Chest x-rays showed some increased heart size. An ECG showed a septal infarct of unknown age. A follow up ECG in June 2004 showed a normal sinus rhythm. The veteran was seen for a January 2005 VA examination to assess his left ventricular function. The examination results showed mild dilation of the left atrium. The cardiologist noted that the left ventricle was normal in size and function with normal wall motion. Without a current disability, service connection is not warranted. See 38 C.F.R. § 3.303. The veteran's claims file reflects a series of heart problems, which appear to be transient in nature. There is one instance of a right bundle branch block, which does not reoccur. The veteran has ECG findings of a septal infarct, which is not replicated. The veteran has cardiomegaly in the form of left ventricle hypertrophy, which, besides not having an impact on cardiac function, also disappears. In the absence of a chronic heart disability, the Board finds that the veteran does not have a currently diagnosed cardiac disability other than hypertension. Accordingly, the Board concludes that service connection is not warranted. See Hickson, Allen, 38 C.F.R. §§ 3.307, 3.309, all supra. As such, the Board finds that the preponderance of the evidence is against the veteran's heart condition claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Perfection of Appeal The Board's authority to review an adverse RO decision is initiated upon a claimant's submission of a Notice of Disagreement (NOD) and completed by a substantive appeal after a Statement of the Case (SOC) has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. It is well- established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each issue before adjudicating the merits and that, once apparent, a potential jurisdictional defect may be raised by the court, tribunal or any party, sua sponte, at any stage in the proceedings. Barnett v. Brown, 83 F.3d 1380 1383 (1996). Within the VA regulatory system, the Board is the sole arbiter of decisions concerning the adequacy of a substantive appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.101(d). The threshold question is whether the veteran has submitted a timely substantive appeal. As noted above, appellate review is initiated by an NOD and completed by a substantive appeal after an SOC is furnished by the RO. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Proper completion and filing of a substantive appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. The NOD and the substantive appeal must be filed with the VA office that entered the determination with which disagreement has been expressed. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.300. After an NOD is filed, an SOC is to be prepared unless the benefit being sought is granted in full. 38 U.S.C.A. § 7105(d)(1). The SOC is to be forwarded to the claimant at his or her most recent address of record, with a copy provided to the claimant's representative. 38 C.F.R. § 19.30(a). Thereafter, a claimant must file a substantive appeal. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 20.202. The substantive appeal must be filed within 60 days from the date the SOC is mailed or within the remainder of the one-year time period from the date of mailing of notice of the initial determination being appealed, whichever ends later. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). Except as provided in 38 C.F.R. § 20.302, the filing of additional evidence after the receipt of notice of an adverse determination does not extend the time limit for initiating or completing an appeal from that determination. 38 C.F.R. § 20.304. Except in the case of simultaneously contested claims, if (i) a claimant submits additional evidence within one year of the date of mailing of the notification of the determination being appealed, and (ii) that evidence requires, in accordance with 38 C.F.R. § 19.31, that the claimant be furnished a supplemental statement of the case, then the time to submit a substantive appeal shall end not sooner than 60 days after such supplemental statement of the case is mailed to the appellant, even if the 60-day period extends beyond the expiration of the one-year appeal period. 38 C.F.R. § 20.302(b)(2). In a May 2003 rating decision, the RO denied service connection for a bilateral eye condition. In a May 2003 letter, the veteran was notified of this decision and of his procedural and appellate rights. In April 2004, the veteran submitted his Notice of Disagreement with the May 2003 rating decision. The RO issued an SOC on September 17, 2004 referencing this issue. The veteran submitted a VA Form 9 in November 2004 and again in December 2004. The veteran specified that he wanted to appeal only the issues listed on the form and listed on the heart condition claim discussed above. There was no mention of the issue of a bilateral eye condition until July 2005 when the veteran's representative submitted a VA Form 646, arguing both the heart and eye claims. Under the circumstances described above, the veteran must have perfected his appeal to the Board within sixty days following notice of the SOC, November 16, 2004 as such date would have been later than the alternative deadline of one- year following notice of the May 2003 RO denial. He did not do so. The November 2004 VA Form 9 received by the RO in was timely, but explicitly restricted to the heart claim. The December 2004 VA Form 9 was also restricted to the heart condition. There was no communication from the veteran or his representative regarding the eye claim within the sixty day period. The Board notified the veteran and the representative in a December 2007 letter that his substantive appeal was untimely, and provided the pertinent laws and regulations to them at that time. The Board notified the veteran and his representative that they had 60 days to request a hearing or to submit evidence and argument concerning the timeliness of his substantive appeal. Therefore, the veteran has been accorded all due process. The veteran did not respond to the December 2007 letter. The record does not contain any statement by the veteran or his representative alleging any error of law or fact regarding the issue of service connection for a bilateral eye condition following the issuance of the SOC dated September 2004 until the Form 646 was received in July 2005. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). The Board further notes that there are no communications prior to or following the expiration of the appeal period which could be construed as a request for extension of time to file a substantive appeal. See 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.303. Neither the veteran nor his representative have indicated that his failure to timely file a substantive appeal was due to good cause. The veteran was properly provided notice of his appellate rights. There is no excuse for his failure to file a timely appeal. Absent a timely substantive appeal, an appeal was not perfected on the denial of service connection for a bilateral eye condition, and the Board is without jurisdiction to adjudicate the claim. He can refile this claim at any time based on the submission of new and material evidence. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a heart condition claimed as secondary to service-connected diabetes mellitus, Type II, is denied. A timely substantive appeal was not received as to the May 2003 rating decision which denied service connection for a bilateral eye condition; therefore, the appeal is dismissed. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs