Citation Nr: 0811245 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 06-20 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for generalized atherosclerosis, coronary artery disease (CAD) and coronary artery stenosis (claimed as atherosclerotic cardiovascular disease) to include as secondary to the service-connected disabilities of diabetes mellitus, Type II (DM) and post- traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and observer, C.B. ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from January 1963 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim. The veteran filed the present claim of entitlement to service connection in August 2005, and in December 2005, the RO denied the claim, secondary to DM. The veteran subsequently filed a notice of disagreement in January 2006 and was issued a statement of the case in April 2006. The veteran perfected his claim in May 2006, at which time he also raised the alternate theory of entitlement to service connection secondary to PTSD. The veteran participated in a Travel Board hearing with the undersigned Veterans Law Judge in January 2008. A transcript of that proceeding has been associated with the veteran's claims file. At the time of the hearing, the veteran submitted additional medical evidence and statements in support of his claim. He also provided the corresponding waiver of agency of original jurisdiction consideration. FINDING OF FACT The veteran's currently diagnosed generalized atherosclerosis, CAD and coronary artery stenosis are not the result of a disease or injury in service, nor are they secondary to or aggravated by the veteran's service-connected DM or PTSD. CONCLUSION OF LAW The veteran's generalized atherosclerosis, CAD and coronary artery stenosis were not incurred in or aggravated by active military service or presumptively related thereto, nor are they related to or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims file. 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 or her 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 claim. 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. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim decided herein, 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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). 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. See 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 the initial adjudication of the veteran's claim, a letter dated in October 2005 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2007); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The October 2005 letter told him to provide any relevant evidence in his possession. See Pelegrini II, at 120-21. The Board notes that while the October 2005 letter only provided notice of how to substantiate a secondary service connection claim for DM, the veteran was provided with a supplemental statement of the case addressing his alternate theory of entitlement to secondary service connection due to PTSD. The veteran was provided an opportunity to participate in his claim and was provided actual notice of how to substantiate a secondary service connection claim. Thus, at no time was the veteran prejudiced. The veteran was provided with notice of how VA determines a disability rating and effective date, compliant with the holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) in an April 2006 letter. The veteran was afforded VA medical examinations in April 2006 and December 2006 to obtain an opinion as to whether his generalized atherosclerosis, CAD and coronary artery stenosis could be directly attributed to service, secondary to service-connected DM or PTSD or aggravated by such. Further examination or opinion is not needed on the claim because, at a minimum, there is no persuasive and competent evidence that the claimed conditions may be associated with the veteran's military service or service-connected DM and PTSD. 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. The Merits of the Claim The veteran alleges that his current generalized atherosclerosis, CAD and coronary artery stenosis are either the result of his time in service, secondary to his service- connected DM and PTSD or aggravated by such. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2007). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d) (2007). In order to establish direct 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular-renal disease, including hypertension, becomes manifest to a degree of 10 percent or more 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. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (2007); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board acknowledges the veteran has been diagnosed with generalized atherosclerosis, CAD and coronary artery stenosis, thus satisfying element (1) of Hickson, supra. It is also noted that the veteran is service-connected for DM and PTSD, satisfying element (2) under Wallin, supra. Upon enlistment examination in January 1963, the examiner noted the veteran's heart to be normal. The veteran himself also indicated that he was in good health. See entrance examinations, Standard Form (SF) 88 and 89, January 4, 1963. There is no evidence that the veteran complained of or was treated for generalized atherosclerosis, CAD and/or coronary artery stenosis during his time in service. The veteran was discharged from service in December 1965. Upon examination, the veteran's heart was normal and the veteran himself stated that he was in a better state of health than when he joined the Army. See discharge examinations, SF 88 and 89, December 25, 1965. There is no evidence to support a finding that the veteran's generalized atherosclerosis, CAD and coronary artery stenosis were present to a compensable degree within the first post-service year. Therefore, service connection on a presumptive basis is not warranted. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). In support of his claim, the veteran alleges that he was first diagnosed with coronary problems in 1976. There is no medical evidence of record to support this contention. In September 2000, the veteran was diagnosed with arteriosclerotic cardiovascular disease, recurrent angina, peripheral vascular disease with aortobifemoral bypass, right carotid bruit, and hyperlipidemia. Percutaneous transluminal coronary angioplasty of the right coronary artery was performed and a history of past and present smoking was noted. DM was not present. See private treatment record, Joseph Chirillo, Jr., M.D., September 6, 2000. The veteran was later diagnosed with DM in September 2002. See id, September 30, 2003. In October 2003, VA treatment records noted the veteran's history of severe CAD with a history of an acute myocardial infarction in 1993 and a two-vessel coronary artery bypass graft in 1999. See VA treatment record, October 10, 2003. In July 2005, the veteran submitted a letter authored by Dr. Chirillo, Jr., in which it was noted that he had reviewed the veteran's medical records and it appeared that his atherosclerotic cardiovascular disease was service connected. It was also noted that the veteran was exposed to Agent Orange during his time in service, which VA attributed as the cause of his current DM. Dr. Chirillo then opined that DM is a major risk factor for the development of atherosclerotic cardiovascular disease. It was also noted that the veteran suffers from PTSD. "Ongoing psychological stress is also felt to be a contributing factor in the development of atherosclerotic cardiovascular disease." See letter from Joseph S. Chirillo, Jr., M.D., July 11, 2005. Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). First, the Board notes that the statement that the veteran's atherosclerotic cardiovascular disease is service connected is a legal conclusion. A medical examiner, no matter how well intentioned, cannot provide a legal conclusion. Service connection is determined by the RO and the Board; those duly authorized by statute and trained to do so. Dr. Chirillo's statement is in no way binding on the determination of the Board. Second, Dr. Chirillo's July 2005 letter did not provide any reasons and bases or authority for his unsupported conclusion that the veteran's current atherosclerotic cardiovascular disease and CAD are related to his service-connected disabilities. It is also unclear which medical records the physician reviewed in conjunction with this assessment. Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Dr. Chirillo did not specify that he had reviewed the veteran's entire claims file in conjunction with his assessment. Third, the Board notes that the medical opinion provided indicates that DM is a major risk factor for the development of atherosclerotic cardiovascular disease. This statement is not relevant in the veteran's case, as the medical evidence has established that the veteran began suffering from heart problems long before he was diagnosed with DM in 2002. This logic also applies to Dr. Chirillo's statement concerning PTSD. The veteran was not diagnosed with PTSD until many years after his heart problems began. As such, Dr. Chirillo's statement has limited probative value. While the veteran asserts that he "may have" suffered from PTSD much earlier, which led to his heart problems, there is no evidence to support this contention. The Board notes that at the time of his Board hearing, the veteran submitted a handwritten copy of a letter he apparently sent to Dr. Chirillo requesting a medical nexus opinion for his claim. It appears that someone wrote on the same piece of paper "[w]hat I disagree with is the fact that they do not seem to want to use DM as a cause of CAD, when it is an indisputable fact that DM does indeed cause CAD. Of course other factors such as smoking, hypertension and genetics contribute also, but how can they simply ignore DM as a major risk factor?" The signature next to this statement is illegible. In order to be considered as legitimate medical evidence, any letter from a physician must be typewritten (or at least legible) and on letterhead (or otherwise identifiable as to author). There is no way to verify who wrote this statement on the veteran's letter. Thus, it is not considered as credible medical evidence. Even affording the veteran the full benefit of the doubt that this statement is from his primary care physician, as noted above, the veteran's DM did not cause his heart complications. The only remaining evidence in support of the veteran's claim are lay statements alleging that the veteran's generalized atherosclerosis, CAD and/or coronary artery stenosis are either the direct result of service, secondary to service- connected DM and/or PTSD or aggravated by DM and/or PTSD. The Board acknowledges that the veteran is competent to give evidence about what he experiences; for example, he is competent to discuss his symptomatology. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). The Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In the present case, the Board finds the multiple VA examinations to be the most persuasive in determining the nature and etiology of the veteran's generalized atherosclerosis, CAD and coronary artery stenosis. Each of the VA examiners provided a thorough and supported rationale for the conclusions provided and the veteran's claims file was reviewed in conjunction with the examinations. See Prejean, supra. The December 2005 VA peripheral nerves examination report again noted the diagnosis of generalized atherosclerosis and coronary heart disease secondary to coronary artery stenosis. In 2000, the veteran had a coronary artery bypass graft and in 2003, underwent a left carotid endarterectomy. The examiner noted the veteran was diagnosed with DM in 2002. See VA examination report, December 1, 2005. During the April 2006 VA heart examination, the veteran reported a history of first having chest pain 20 years ago and at that time studies revealed the presence of an old myocardial infarction. He was also diagnosed with hyperlipidemia and hypertension at that time. This was followed by the aforementioned 2000 coronary artery bypass graft. In 1997, the veteran had a bypass graft for peripheral artery disease. DM was not diagnosed until 2002. The veteran reported no history of problems with hyperglycemia prior to that time. Since the diagnosis, the veteran admits he does not follow his diet very strictly. The examiner diagnosed the veteran with CAD status post myocardial infarction, status post coronary artery bypass graft; recurrent angina; hypertension; peripheral artery disease status post aortobifemoral bypass surgery; chronic calf claudication; carotid artery stenosis status post right carotid endarterectomy; DM; hyperlipidemia; and peripheral neuropathy. See VA heart examination report, April 13, 2006. The examiner noted the veteran's arteriosclerotic cardiovascular disease with aortobifemoral bypass in 1997 and right carotid endarterectomy delineated an extensive history of generalized arteriosclerosis and CAD. However, the history of DM only dated to 2002. Therefore, it was the examiner's opinion that the veteran's atherosclerotic heart disease was less likely than not caused by or the result of his service-connected DM. It was also noted that since the veteran's condition had not deteriorated drastically since the diagnosis of DM, it was less likely than not that the DM permanently aggravated the atherosclerotic heart disease. Id. The December 2006 VA heart examination report noted the September 2006 private treatment report wherein the veteran's cardiovascular risk factors were noted to be: positive hypertension; no diabetes; positive type B hyperlipidemia; ongoing tobacco use; and positive family history. The examiner stated that the context of the clinical findings would indicate an extremely strong genetic and hereditary predisposition to atherosclerotic cardiovascular disease. Although it was conceded that PTSD may contribute to the development of hypertension, it was the examiner's opinion that the veteran's generalized atherosclerosis and CAD were less likely than not caused by or the result of PTSD. It was also concluded that it was less likely than not that the veteran's PTSD permanently aggravated his CAD. See VA heart examination report, December 8, 2006. In January 2007, an addendum was added to the record to clarify and emphasize the previous December 2006 VA examination opinion. The same VA examiner restated that although it is generally conceded that PTSD may aggravate hypertension, the examiner found no clinical evidence to support that PTSD was involved in the etiology and development of the veteran's arteriosclerotic cardiovascular disease. The veteran had clinical evidence, both personal and familial, of an extremely strong genetic and hereditary predisposition to arteriosclerosis, which, in the examiner's opinion, was the principal etiological agent for his CAD. Therefore, the examiner again concluded that the veteran's arteriosclerotic cardiovascular disease and CAD were not caused by or the result of his PTSD. See VA examination report addendum, January 16, 2007. Though the veteran has established that he has a current disability and that he is service-connected for DM and PTSD, the evidence of record has failed to establish that his generalized atherosclerosis, CAD and coronary artery stenosis are the direct result of service, secondary to his service- connected DM and PTSD or aggravated by these service- connected conditions. Without credible medical evidence establishing a medical nexus between service or the service- connected conditions, the veteran's claim fails. See Hickson; Wallin, supra. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application. In this case, for the reasons and bases discussed above, a reasonable doubt does not exist regarding the veteran's claim that his generalized atherosclerosis, CAD and coronary artery stenosis are related to service or service-connected disability. There is not an approximate balance of evidence. ORDER Entitlement to service connection for generalized atherosclerosis, CAD and coronary artery stenosis, to include as secondary to service-connected DM and PTSD, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs