Citation Nr: 0811240 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-09 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for coronary artery disease (CAD). 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for gastroesophageal reflux disorder (GERD). 4. Entitlement to service connection for degenerative arthritis of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Harrigan, Associate Counsel INTRODUCTION The appellant served on active duty from February 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied service connection for CAD, hypertension, GERD and degenerative arthritis of the lumbar spine. In January 2003, the appellant testified at a hearing before a Decision Review Officer (DRO); a copy of the transcript is associated with the record. FINDINGS OF FACT 1. There is no competent medical evidence showing the veteran's CAD is related to service. 2. There is no competent medical evidence showing the veteran's hypertension is related to service. 3. There is no competent medical evidence showing the veteran's GERD is related to service. 4. There is no competent medical evidence showing the veteran's degenerative arthritis of the lumbar spine is related to service. CONCLUSIONS OF LAW 1. CAD was not incurred in, or aggravated by, active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 2. Hypertension was not incurred in, or aggravated by, active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). 3. GERD was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). 4. Degenerative arthritis of the lumbar spine was not incurred in, or aggravated by, active military service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from 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 ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter(s) sent to the appellant in August 2005 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claim(s) and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in her or his possession to the AOJ. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although this notice was not provided until April 2006, after the initial AOJ decision, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to this claimed condition. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service medical records, VA medical records and examination reports and lay statements have been associated with the record. The veteran was provided an opportunity to set forth his contentions during a hearing before a DRO in January 2003. The appellant was afforded a VA medical examination in March 2005. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Under the applicable criteria, service connection may be granted for a disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. For veterans who had service of ninety (90) days or more during a war period or peacetime service after December 31, 1946, and any chronic disease such as arthritis or cardiovascular disease, to include hypertension is manifest to a compensable degree within a year thereafter, there is a rebuttable presumption of service origin, absent affirmative evidence to the contrary, even if there is no evidence thereof during service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in- service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection may be established under the provisions of 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that an appellant had a chronic condition in service or during the applicable presumptive period. Service connection also may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Court has also held that "Congress specifically limits entitlement for service- connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Brown, 3 Vet. App. 223, 225 (1992). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service connection - CAD At his DRO hearing, the veteran contended that he has CAD as a result of service in Vietnam and that it therefore should be service-connected. Service medical records do not reflect a coronary condition. There is no evidence of treatment for or a diagnosis of a coronary condition in service. His separation Report of Medical Examination reflects a normal heart and vascular system. A coronary condition is not noted. The first post-service evidence which indicates a coronary problem is a December 2004 VA medical record which shows the veteran reported symptoms of exertional angina with chest pain, shortness of breath, dizziness and sweating which lasted about 10 minutes. He was given a stress test which was normal. A March 2005 VA general medical examination report shows that the veteran had another episode of chest pain and shortness of breath in January 2005 and that he did not have fatigue, dyspnea or syncope. The examiner noted that the veteran's stress test revealed that he had mild ischemia, but had not had a myocardial infarction, congestive heart failure, acute rheumatic heart disease, cardiac surgery or coronary artery bypass grafts, angioplasties or stents. Upon examination, the veteran's heart was at a regular rate and rhythm with no murmurs, clicks, rubs or extra sounds. The diagnosis was coronary artery disease, secondary to tobacco addiction. There was no link provided between the veteran's CAD and his time in service. Based on the above, there is no competent medical evidence that supports the appellant's contention of an etiological relationship between his CAD and active service. The VA examiner diagnosed CAD as secondary to tobacco addiction and did not relate it to service in any way. In the absence of in-service treatment and competent medical evidence linking a disorder to service, additional development is not warranted. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). While cardiovascular disease is considered a chronic condition which would warrant service connection if manifested to a compensable degree within one year after leaving service, there is no evidence in the claims file that the veteran's CAD began within one year of leaving service. 38 C.F.R. §§ 3.307, 3.309. Thus, the preponderance of the medical evidence is against service connection for CAD. Accordingly, the service-connection claim for CAD is denied. Service connection - hypertension At his DRO hearing, the veteran contended that he has hypertension as a result of his service in Vietnam, and that it therefore should be service-connected. Service medical records do not reflect a diagnosis of or treatment for hypertension. His separation Report of Medical Examination reflects a blood pressure reading of 120/72. Hypertension is not noted. The first post-service evidence which indicates hypertension is a December 2004 VA medical record which shows the veteran was diagnosed with hypertension and given medication. A March 2005 VA general medical examination report reflects the examiner's note that the veteran did not have any symptoms for hypertension other than the concurrent symptom of chest pain. Upon examination, three blood pressure readings were taken five minutes apart. Sitting, supine and standing blood pressures were 114/80, 120/80 and 120/80, respectively. The examiner noted that the veteran did not have any arteriosclerotic complications of hypertension. The dianosis was essential hypertension. The examiner did not provide a nexus between the veteran's hypertension and his time in service. While the veteran has a current diagnosis of hypertension, the evidence of record does not show that the veteran's hypertension is related to his time in service. In the absence of in-service treatment and competent medical evidence linking a disorder to service, additional development is not warranted. See Wells, supra. The Board notes that hypertension is considered a chronic condition which would warrant service connection if manifested to a compensable degree within one year after leaving service. 38 C.F.R. §§ 3.307, 3.309. However, there is no evidence in the claims file that the veteran's hypertension began within one year of leaving service. Based on the above, there is no competent medical evidence that supports the appellant's contention of an etiological relationship between his current diagnosis of hypertension and active service. Thus, the preponderance of the medical evidence is against service connection for hypertension. Accordingly, the service-connection claim for hypertension is denied. Service connection - GERD The veteran contends that he has GERD as a result of service in Vietnam and that it therefore should be service-connected. Service medical records do not reflect any evidence of treatment for or a diagnosis of GERD in service. GERD is not noted on the veteran's separation Report of Medical Examination. The first post-service evidence which indicates a diagnosis of GERD is a December 2004 VA medical record. VA treatment records show ongoing treatment for GERD, but do not reflect a link between the veteran's GERD and his time in service. A March 2005 VA general medical examination report shows that the veteran's abdomen was soft and nontender. The examiner noted that the veteran had a history of GERD; however, he did not diagnose the veteran with GERD upon examination. Based on the above, there is no competent medical evidence that supports the appellant's contention of an etiological relationship between his GERD and active service. While VA medical records reflect ongoing treatment for the veteran's GERD, none of the examiners have provided a nexus between the veteran's GERD and his time in service. The March 2005 VA examiner did not provide a diagnosis of GERD after examining the veteran. In the absence of in-service treatment and competent medical evidence linking a disorder to service, additional development is not warranted. See Wells, supra. Thus, the preponderance of the medical evidence is against service connection for GERD. Accordingly, the service- connection claim for GERD is denied. Service connection - degenerative changes of the lumbar spine At his DRO hearing, the veteran contended that he has degenerative changes of the lumbar spine which are a result of his service in Vietnam, and that it therefore should be service-connected. Service medical records reflect that the veteran was seen in June 1969 for back pain as a result of a fall. Full movement was noted and there was no fracture. He was told to return to the clinic if needed. There are no other service medical records that show treatment for the veteran's back. His separation Report of Medical Examination reflects a normal spine and there is no indication of treatment for or a diagnosis of a lumbar spine condition. A March 2005 VA general medical examination report reflects that the veteran indicated that he had a history of low back pain since 2004. The veteran described continuous sharp pain in the low back, at a seven on a scale of one to ten. The veteran did not have flare-ups and walked one mile per day for exercise. He walked unaided and did not use a back brace. He had no history of falls or trauma or injury to the back, and no back surgery. The examiner diagnosed age- related degenerative arthritis of the lumbar spine. Service medical records show the veteran was seen once in service for back pain. However, there are no other records showing treatment for his back while in service and his separation examination does not reflect a back condition upon leaving service. VA medical records reflect ongoing treatment for the veteran's degenerative arthritis of the lumbar spine, but none of the examiners provided a link between service and his current spine condition. In fact, the March 2005 VA examiner opined that his degenerative arthritis of the lumbar spine was age-related. In the absence of in-service treatment and competent medical evidence linking a disorder to service, additional development is not warranted. See Wells, supra. The Board notes that arthritis is considered a chronic condition which would warrant service connection if manifested to a compensable degree within one year after leaving service. 38 C.F.R. §§ 3.307, 3.309. However, there is no evidence in the claims file that the veteran's arthritis began within one year of leaving service. Based on the above, there is no competent medical evidence that supports the appellant's contention of an etiological relationship between his current diagnosis of degenerative arthritis of the lumbar spine and active service. Thus, the preponderance of the medical evidence is against service connection for degenerative arthritis of the lumbar spine. Accordingly, the service-connection claim for degenerative arthritis of the lumbar spine is denied. Conclusion The veteran has also claimed that these conditions are each related to his time in service in Vietnam. The Board notes that service in Vietnam provides a presumption of exposure to herbicides, which in turn warrants service connection for certain diseases. 38 C.F.R. § 3.307, 3.309(e). However, as the list of diseases for which service connection would be warranted on the basis of exposure to herbicides does not include CAD, hypertension, GERD or degenerative arthritis, presumptive service connection based on exposure to herbicides while serving in Vietnam is not warranted. The Board has further considered the veteran's contentions that he has CAD, hypertension, GERD and degenerative arthritis of the lumbar spine that were caused by his time in service. However, he, as a layperson, with no apparent medical expertise or training, is not competent to comment on the presence or etiology of a medical disorder. Rather, medical evidence is needed to that effect. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since the preponderance of the evidence is against each of these claims, the benefit of the doubt doctrine is not for application. See Gilbert, supra. ORDER Service connection for CAD is denied. Service connection for hypertension is denied. Service connection for GERD is denied. Service connection for degenerative arthritis of the lumbar spine is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs