Citation Nr: 0810020 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 04-21 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for arthritis of the shoulders, hips, knees, feet, and neck, to include as secondary to service-connected right foot injury with limitation of motion and arthritis. 2. Entitlement to service connection for congestive heart failure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran had active duty service from August 1962 to February 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board remanded the case for further development in February 2006. That development was completed, and the case has since been returned to the Board. A hearing was held on April 22, 2005, by means of video conferencing equipment with the appellant in Atlanta, Georgia, before the undersigned Veterans Law Judge, sitting in Washington, DC, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The issue of entitlement to service connection for arthritis of the shoulders, hips, knees, feet, and neck will be addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeals has been obtained. 2. Congestive heart failure did not manifest in service or to a compensable degree within one year thereafter and has not been shown to be causally or etiologically related to military service. CONCLUSION OF LAW Congestive heart failure was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Board acknowledges that the RO did not provide the veteran with adequate notice of the information or evidence needed to substantiate his claim for service connection prior to the initial rating decision in December 2002. Nevertheless, the RO did send the veteran a letter in February 2006 in connection with the issue of entitlement to service connection for congestive heart failure, which did meet the notification requirements. The Board finds that any defect with respect to the timing of the notice requirement was harmless error. In this regard, the Board notes that, while notice provided to the veteran was not given prior to the first agency of original jurisdiction (AOJ) adjudication of the case, notice was provided by the AOJ prior to the transfer and certification of the veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). After the notice was provided, the veteran's claim for service connection was readjudicated in a supplemental statement of the case (SSOC). See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and argument in support of his claim. Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004). The veteran has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the veteran. Therefore, with respect to the timing requirement for the notice, the Board concludes that to decide this appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection. Specifically, the February 2006 letter stated that the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. Additionally, the April 2004 statement of the case (SOC) and the November 2006 supplemental statement of the case (SSOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claim. In addition, the RO notified the veteran in the notice letter about the information and evidence that VA will seek to provide. In particular, the February 2006 letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request any pertinent records held by Federal agencies, such as service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the veteran about the information and evidence that he was expected to provide. Specifically, the February 2006 letter notified the veteran that he must provide enough information about his records so that they could be requested from the agency or person that has them. It was also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the February 2006 letter informed him that it was his responsibility to ensure that VA received all requested records that are not in the possession of a Federal department or agency. Finally, in the February 2006 notice letter, the RO informed the claimant to provide any evidence in his possession that pertains to the claim. Thus, because each of the four notice requirements has been fully satisfied in this case, any error in not providing a single notice to the appellant covering all content requirements is harmless error. Further, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date. In this regard, the Board notes that a November 2006 letter informed him that a disability rating was assigned when a disability was determined to be service-connected and that such a rating could be changed if there were changes in his condition. The letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the appellant has also been satisfied in this case. The veteran's service medical records as well as all available VA treatment records and private medical records are in the claims file and were reviewed by both the RO and the Board in connection with his claim. His records from the Social Security Administration were also obtained. Additionally, he was afforded VA examinations in October 2002 and September 2006, and he was provided the opportunity to testify at a hearing before the Board. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOC, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, such as cardiovascular-renal disease, may also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for congestive heart failure. The Board does observe the veteran's service medical records showing that he was noted to have organic heart disease in July 1966 and August 1966. The etiology was not proven, but a ventricular septal defect due to trauma versus papillary muscle laceration or dysfunction was suspected. The veteran was referred for further evaluation in October 1966 because he had reported having a normal heart with no murmurs on a previous physical examination for flying purposes, yet he was found to have a systolic murmur following an accident. The examining physician indicated that the veteran might have had traumatic heart disease and probable mitral insufficiency. However, following a cardiac catheterization in October 1966, the physician stated that there was no significant evidence of disease and that the veteran was not considered to have heart disease. It was recommended that he be reevaluated in approximately one year because of the possibility that a small amount of either rheumatic or traumatic mitral insufficiency existed. Nevertheless, a January 1967 separation examination found the veteran's heart and vascular system to be normal, and he denied having a medical history of pain or pressure in his chest, palpitation or pounding heart, and high or low blood pressure. Moreover, the Board notes that the veteran was not diagnosed with congestive heart failure immediately following his separation from service or for many years thereafter. In fact, the veteran was afforded a VA examination in April 1967 at which time it was noted that he had been found to have a heart murmur during the previous year. However, he denied having any current symptoms. A physical examination did reveal a systolic murmur, but the cardiovascular examination was otherwise negative. The veteran was also seen in August 1967 with a diagnosis of a functional heart murmur without any organic heart disease. The veteran denied having any shortness of breath, paroxysmal nocturnal dyspnea, orthopnea, peripheral cyanosis, chest pain, pedal edema, palpitations, or episodes of dizziness. He was considered asymptomatic with a normal chest x-ray, and the murmur was regarded as unrelated to his accident in service. Thus, any symptomatology the veteran may have experienced in service appears to have been acute and transitory and to have resolved without residuals prior to his separation. Therefore, the Board finds that congestive heart failure did not manifest in service or within one year thereafter. With regard to the years-long evidentiary gap in this case between active service and the earliest complaints, treatment, or diagnosis of congestive heart failure, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or disease in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings for many years between the period of active duty and the first complaints or symptoms of congestive heart failure is itself evidence which tends to show that such a disorder did not have an onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In addition to the lack of evidence showing that congestive heart failure manifested during service or within close proximity thereto, the medical evidence of record does not link any current diagnosis to the veteran's active service. In fact, VA medical records dated in December 2004 indicate that a physical examination and echocardiogram did not suggest that the veteran had a traumatic valvular abnormality when he was a young man. The cardiologist did not find any mitral valve disease or mitral regurgitation, and he believed that the majority of the veteran's shortness of breath was pulmonary in origin. He also doubted that the veteran ever had any clinical congestive heart failure. In addition, the September 2006 VA examiner indicated that there was no evidence of diastolic or systolic heart dysfunction. There was no mitral valve prolapse, mitral regurgitation, or evidence of a previous cardiac contusion. The stress test did not reveal any evidence of inducible regional wall motion abnormalities, and there were no ECG changes. The examiner stated that data suggested that the veteran did not have congestive heart failure and that symptoms of shortness of breath and paroxysmal nocturnal dyspnea were more likely related to sleep apnea and lung disease. The examiner also commented that there was no evidence of significant valvular heart disease or a previous cardiac injury, which was consistent with the findings in 1966 and 1967 as well as in December 2004. As such, the September 2006 VA examiner concluded that it was unlikely that any of the veteran's current symptoms were related to his military service. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for congestive heart failure. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for congestive heart failure is not warranted. ORDER Service connection for congestive heart failure is denied. REMAND Reason for Remand: To notify the veteran of pertinent regulations and to obtain a medical opinion. As discussed above, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The veteran's representative submitted an informal hearing presentation in July 2007 in which he appears to contend that the veteran's arthritis of the shoulders, hips, knees, feet, and neck may be secondary to his service-connected right foot injury with limitation of motion and arthritis. However, the veteran has not been provided with the laws and regulations pertinent to claims for service connection on a secondary basis. In particular, the Board notes that the April 2004 statement of the case (SOC) and November 2006 supplemental statement of the case (SSOC) did not contain the laws and regulations pertaining to secondary service connection, namely 38 C.F.R. § 3.310. Moreover, the Board notes that during the pendency of this appeal, the provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995) (when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. However, the veteran has not been notified of this amendment. Therefore, the Board finds it necessary to remand the veteran's claim so that the RO may address in the first instance the applicability of these revisions to the claim. In addition, the Board notes that the veteran was afforded a VA examination in October 2002 and September 2006 in connection with his claim for service connection for arthritis of the shoulders, hips, knees, feet, and neck. However, those examiners did not address whether the veteran's service-connected right foot injury may have caused or permanently aggravated his arthritis. Therefore, the Board finds that a VA examination and medical opinion are necessary for the purpose of determining the nature and etiology of any and all arthritis of the shoulders, hips, knees, feet, and neck that may be present. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The veteran should be afforded a VA examination to determine the nature and etiology of any arthritis of the shoulders, hips, knees, feet, and neck that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment as to whether it is at least as likely as not that the veteran currently has arthritis of the shoulders, hips, knees, feet, and neck that is either caused by or permanently aggravated by his service-connected right foot injury with limitation of motion and arthritis. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. The RO should readjudicate the remaining issues on appeal, including consideration of entitlement to service connection for arthritis of the shoulders, hips, knees, feet, and neck on a secondary basis. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should include the version of 38 C.F.R. § 3.310 that became effective on October 10, 2006. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The purpose of this REMAND is to ensure due process, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs