Citation Nr: 0809785 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 03-34 731A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a neurocardiogenic presyncope disorder. REPRESENTATION Appellant represented by: David Glasser, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant/Veteran ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The veteran serviced on active duty from January 1969 to May 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefit sought on appeal. This appeal has previously been before the Board on two occasions. In March 2006, the Board remanded the appeal in order that a personl hearing could be scheduled. The veteran testified before the Board in February 2007. The Board notes that the veteran had previously testified before a Decision Review Officer (DRO) in March 2004. Copies of the transcripts of these hearings have been associated with the claims file. The veteran's appeal was next before the Board in April 2007. At that time, the Board remanded the appeal in order that VA could seek to obtain certain additional private treatment records and to afford the veteran with a VA examination. As discussed more fully below, the Board finds that VA has substantially complied with the directives contained in the April 2007 Board remand, and the claim is ripe for adjudication upon the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The veteran was last issued a supplemental statement of the case in December 2007. In a February 2008 letter, the veteran's attorney requested a 30 day "enlargement of time" to respond to the supplemental statement of the case - listing such date as on or before March 6, 2008. See 38 C.F.R. §§ 20.302, 20.303. The attorney did not submit a response by March 6, 2008. In the December 2007 supplemental statement of the case, the RO only noted the attorney's previous request for an extension of time and the veteran's failure to respond to a request to fully complete Authorization and Consent to Release Information Forms, and did not consider any additional evidence. The Board notes that the attorney had submitted a letter in response to a September 2007 supplemental statement of the case. The Board continues with adjudication of the appeal. As noted in the April 2007 Board remand, the claim currently on appeal is somewhat related to a claim of entitlement to service connection for migraine headaches, which was originally denied in a September 1969 rating decision. In a September 2004 rating decision, the RO reopened this claim but continued the denial of service connection for migraine headaches. The veteran did not appeal this decision. Therefore, the issue of entitlement to service connection for migraine headaches is not currently before the Board for adjudication. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The competent evidence of record indicates that a neurocardiogenic presyncope disorder is not attributable to service. CONCLUSION OF LAW A neurocardiogenic presyncope disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. During the pendency of this appeal, the veteran has been issued multiple VCAA notification letters, including letters issued in November 2005, March 2006, and May 2006. These notices fulfilled the provisions of 38 U.S.C.A. § 5103(a). The letters notified the veteran of the information and evidence needed to substantiate and complete his claim, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The November 2005 notification letter also generally advised the veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The March 2006 letter provided additional notice of the five elements of a service-connection claim as is required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the VCAA letters noted above were issued after the March 2002 rating decision on appeal. The Board is cognizant of recent Federal Circuit decisions pertaining to prejudicial error. Specifically, in Sanders v. Nicholson, 487 F.3d 881 (2007), the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial and that once an error is identified by the Court, the burden shifts to VA to demonstrate that the error was not prejudicial. The Federal Circuit reversed the Court of Appeals for Veterans Claims' holding that an appellant before the Court has the initial burden of demonstrating prejudice due to VA error involving: (1) providing notice of the parties' respective obligations to obtain the information and evidence necessary to substantiate the claim: (2) requesting that the claimant provide any pertinent evidence in the claimant's possession; and (3) failing to provide notice before a decision on the claim by the agency of original jurisdiction. (Emphasis added.) See also Simmons v. Nicholson, 487 F.3d 892 (2007). In this case, the timing error with respect to the notice requirements noted above raises a presumption of prejudicial error but such error is rebutted by the record. The RO cured the timing defect by providing complete VCAA notice together with re-adjudication of the claim, as demonstrated by the September 2007 and December 2007 supplemental statements of the case. Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Court has held that a supplemental statement of the case that complies with applicable due process and notification requirements constitutes a readjudication decision. See Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006) (Mayfield III); see also Prickett, supra (holding that a statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). As the supplemental statements of the case complied with the applicable due process and notification requirements for a decision, they constitutes readjudication decisions. Accordingly, the provision of adequate notice followed by a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Mayfield III, 20 Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d 1328, 133-34 (Fed. Cir. 2006) (Mayfield II). Thus, the presumption of prejudice against the veteran because of the timing of the notice is rebutted. See Sanders, supra. The veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, the veteran has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. While the veteran does not have the burden of demonstrating prejudice, it is pertinent to note that the evidence does not show, nor does the veteran contend, that any notification deficiencies, either with respect to timing or content, have resulted in prejudice. The Board also finds that all necessary assistance has been provided to the veteran. The evidence of record includes VA medical records, including an August 2007 VA opinion obtained upon remand. The Board is aware that the April 2007 Board remand directed that the veteran be provided a VA examination. The veteran, however, is presently incarcerated. Although the exact letter of the directive contained in the April 2007 Board remand has not been followed, after review of the August 2007 VA opinion report, the Board finds that it provides competent, non-speculative evidence regarding whether the veteran has a neurocardiogenic presyncope disorder attributable to service. The Board finds that the contents of the August 2007 VA opinion report substantially satisfy the directive contained in the April 2007 Board remand. Thus, there is no duty to provide an examination. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board also notes the April 2007 remand requested that all current treatment records from the veteran's private physician, Dr. GJD, and the cardiologist who diagnosed neurocardiogenic presyncope, be obtained. Upon remand, the veteran did not respond to the RO's request for the veteran to submit Authorization and Consent to Release Information to the Department of Veterans Affairs, VA Form 21-4142 with complete addresses. In this regard, the Board highlights that the duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190. 192 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992). See also Hyson v. Brown, 5 Vet. App. 262 (1993) (while the VA does have a duty to assist the appellant in the development of a claim, that duty is not limitless). The Board finds that there is no additional duty to obtain these records. See 38 C.F.R. § 3.159. In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 C.F.R. § 3.306(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. See 38 C.F.R. § 3.306(b). Service connection may also be granted when a disability is secondary to a service-connected disability. Under 38 C.F.R. § 3.310, service connection may be granted for disability which is proximately due to or the result of a service- connected disease or injury and secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service- connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). A recent amendment to 38 C.F.R. § 3.310, effective October 10, 2006, was enacted. See 71 Fed. Reg. 52744 (2006). The amendment essentially codifies Allen by adding language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. A disability may be service connected if the evidence of record reveals that the veteran currently has a disability that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disability to service must be medical unless it relates to a disability that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The veteran contends that he has a presyncope disorder that is somehow etiology related to service. Service medical records document the veteran's treatment for migraine headaches. After approximately four months of service, the veteran was discharged from service due to this disability. In the same month as discharge from service, the veteran filed for service connection for migraine headaches. In a September 1969 rating decision, the RO denied service connection, finding that the evidence showed that the veteran's migraine headaches existed prior to service and that there was no evidence of aggravation during service. The veteran did not appeal this decision, and it became final. See 38 U.S.C.A. § 7105. Based upon a request to reopen, the RO issued a September 2004 rating decision that reopened the claim for service connection for migraine headaches, but again denied the claim upon the merits. The veteran did not appeal this rating decision, and it became final. See 38 U.S.C.A. § 7105. The Board finds that the veteran's contention, in essence, is that he developed a neurocardiogenic presyncope disorder during service that had separate symptomatology from the migraine headaches. Thus, although the neurocardiogenic presyncope disorder may be related to the migraine headache disorder, he has contended that this separate disability began during service. No service medical records, however, contain a diagnosis of neurocardiogenic presyncope disorder. Although some of the records below indicate that diagnosis was a syncope disorder, the veteran has asserted that he has a presyncope, and not a syncope, disorder. The record indicates that the veteran was involved in a motor vehicle accident in 2001. The record contains a private treatment record dated in August 2001 that is entitled "Tilt Table Evaluation." The clinician indicated that the veteran had episodes of neurocardiogenic syncope. The record also contains a January 2005 letter from a private medical doctor. He notes that the veteran has been under his care for several years and had a history of near loss of consciousness. The veteran had informed the medical doctor that he had been experiencing these problems for more than 30 years, which have been associated with migraine headaches. The medical doctor noted that there was a well-established relationship between migraines and syncope, in fact, any significant pain could cause dizziness and loss of consciousness. The veteran has also submitted numerous treatise materials that he contends support his contentions. The record now includes an August 2007 VA opinion. The clinician noted review of the claims file. The clinician completing this opinion noted that the opinion was easily rendered based on review of the objective medical data and medical literature. The clinician found that the veteran's neurocardiogenic presyncope/syncope disorder was not caused by the veteran's brief period of active duty service, noting that the service medical records were silent for neurocardiogenic syncope. She also noted that there was no objective data to support a claim that the veteran's migraine headaches were aggravated by active duty service. Analysis The Board finds that the veteran does not have a neurocardiogenic presyncope disorder attributable to service. As service connection is not in effect for migraine headaches or any other disability, service connection cannot be granted on a secondary basis. See 38 C.F.R. § 3.310. Further, as there is no competent evidence that neurocardiogenic presyncope disorder was diagnosed prior to service or during service, it is not required to consider whether the disability was aggravated during service. See 38 C.F.R. § 3.306. Therefore, the question remaining before the Board is whether the veteran has a neurocardiogenic presyncope disorder that is directly related to service. The record indicates that the veteran is currently diagnosed as having the disability. Although the January 2005 letter from a private medical doctor notes that the veteran reported that he had symptoms for more than 30 years, this places the beginning of symptoms as beginning only prior to 1975, more than 5 years after service. In the August 2007 VA opinion, after review of the evidence of record, the medical doctor completing the opinion found that the disability was not related to service. Although the veteran has submitted medical treatise evidence, this evidence is not accompanied by medical evidence that relates the findings in the treatise materials to the veteran's particular case. Therefore, the Board finds that these treatise materials do not contain the specificity to constitute competent evidence of the claimed medical nexus. See Sacks v. West, 11 Vet. App. 314 (1998); see also Wallin v. West, 11 Vet. App. 509 (1998). Although the Board has considered the veteran's lay statements, the Board first notes that he has not been shown to possess the requisite medical training or credentials needed to render a diagnosis or a competent opinion as to medical causation. Accordingly, his lay opinion does not constitute medical evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). To the extent that the veteran's testimony constitutes an assertion of continuity of symptomatology, the probative value of this evidence is outweighed by the absence of contemporary medical evidence that the veteran was diagnosed as having presyncope until August 2001, more than 32 years after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint can be considered in service connection claims). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the veteran's claim for service connection for a neurocardiogenic presyncope disorder must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Entitlement to service connection for a neurocardiogenic presyncope disorder is denied. ____________________________________________ ROBERT E. O'BRIEN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs