Citation Nr: 0811268 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 04-03 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for arteriosclerotic heart disease, status post multiple angioplasties. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The veteran served on active duty from August 1983 to April 1989. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO, in pertinent part, denied entitlement to service connection for angina pectoris status post angioplasty and human immunodeficiency virus (HIV). The claims were previously before the Board in March 2006 wherein the determinations of the RO were upheld. The veteran appealed the continued denials to the United States Court of Appeals for Veterans Claims (Court). In an August 2007 Order, the Court remanded the claim of entitlement to service connection for atherosclerotic heart disease status post-angioplasty times three for compliance with the instructions in the Joint Motion for Partial Remand. The claim of entitlement to service connection for HIV was dismissed and is no longer in appellate status. The veteran presented testimony before the RO in November 2003 and the Board in December 2005. The transcripts have been associated with the claims folder. The claim on appeal has been recharacterized as it appears on the cover page of the instant decision. The Board notes the RO denied entitlement to service connection for hypertension in February 1990. However the veteran failed to timely perfect an appeal of that issue and thus it is final. The veteran filed the instant claim in September 2002. As the claim is based upon a distinctly diagnosed disease, the current claim is considered separate and distinct from the prior claim. Boggs v. Peake, No. 2007- 7137 (Fed. Cir. Mar. 26, 2008). FINDINGS OF FACT 1. The veteran has been apprised of what evidence would substantiate the claim for benefits and the allocation of responsibility for obtaining such evidence; and all relevant medical and lay evidence obtainable and necessary to render a decision in this matter has been received. 2. Atherosclerotic heart disease status post multiple angioplasties was not incurred or aggravated during the veteran's period of active military service nor did it manifest to the required degree within the year following discharge from said service. CONCLUSION OF LAW The criteria for the establishment of service connection for atherosclerotic heart disease status post multiple angioplasties are not met. 38 U.S.C.A. §§ 1101, 1131, 1132, 1133, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties To Notify And Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2006). The notice requirements of the VCAA require VA to notify the veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; what subset of the necessary information or evidence, if any, the VA will attempt to obtain; and a general notification that the claimant may submit any other evidence he has in his possession that may be relevant to the claim. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule); see also Sanders, supra. In this case, in an October 2002 letter, issued prior to the decision on appeal, the RO provided notice to the veteran regarding what information and evidence is needed to substantiate the claim, as well as what information and evidence must be submitted by the veteran, what information and evidence will be obtained by VA, and the need for the veteran to advise VA of or submit any further evidence that pertained to the claim. The veteran responded in November 2002 and indicated that he had been treated at the VA Medical Center (VAMC) in Orlando, Florida, in February 1990. The Board notes that the February 1990 report of VA examination has been associated with the claims folder. The case was last readjudicated in a December 2003 statement of the case (SOC). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the veteran. Specifically, the information and evidence that have been associated with the claims file includes the veteran's service medical records, post-service private and VA treatment records, a VA examination report, and the transcripts from the November 2003 RO and December 2005 Board hearings. Additional VA outpatient treatment records were received after the December 2003 SOC was issued. The veteran waived initial RO consideration of the newly submitted evidence. As such, remand for preparation of a supplemental statement of the case (SSOC) is not necessary. 38 C.F.R. § 20.1304(c). In September 2007, the veteran was notified that his claim had been received by the Board following the issuance of the August 2007 Court remand decision. The veteran was provided an opportunity to submit additional argument and/or evidence in support of his claim. The veteran indicated in February 2008 that he did not have any additional information to submit in support of his claim. He further stated that he "waive[d] his right to have the case remanded to the AOJ." He asked that the Board proceed with the adjudication of his appeal. As discussed above, the VCAA provisions have been considered and complied with. The veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no indication that there is additional evidence to obtain, there is no additional notice that should be provided, and there has been a complete review of all the evidence without prejudice to the veteran. As such, there is no indication that there is any prejudice to the veteran by the order of the events in this case. See Pelegrini, supra; Bernard v. Brown, 4 Vet. App. 384 (1993). Moreover, as the Board concludes below that the preponderance of the evidence is against the veteran's claim, any question as to an appropriate evaluation or effective date to be assigned is rendered moot. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. See Sanders, supra. Thus, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the veteran's claims file, which includes: his multiple contentions; the veteran's service medical records; post-service VA and private treatment records; a VA examination report; and the transcripts from the November 2003 RO and December 2005 Board hearings. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arteriosclerosis/cardiovascular- renal disease becomes manifest to a degree of 10 percent within one 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1133, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The veteran contends that he is entitled to service connection for atherosclerotic heart disease status post multiple angioplasties. Specifically, the veteran contends that he began to first manifest symptoms of the disease during service, to include complaints of jaw pain. He alternatively asserts that heart disease was diagnosed within the first year following discharge from active duty service. After careful consideration of all procurable and assembled data, the Board finds that service connection for atherosclerotic heart disease status post multiple angioplasties, is not warranted. In this regard, contrary to the veteran's present reports, the service medical records are wholly devoid of complaints, diagnoses, or treatment for atherosclerotic heart disease. During the December 2005 Board hearing, the veteran testified under oath, that he was not diagnosed with high blood pressure nor did he suffer from chest pains in service. Transcript at 7. He further indicated that he had no abnormal electrocardiograms (EKG) or chest x-rays during service. Transcript at 12. Complaints of jaw pain in October 1986 were the result of a contusion to the temporomandibular joint. Blood pressure readings were normal throughout service. The December 1988 separation examination was negative for any evidence of heart disease. Chest x-rays taken in conjunction with separation were normal. Service medical records dated in February 1989 show the heart was evaluated as normal and chest x-rays were again negative. Atherosclerotic heart disease was not shown at separation from service. Post-service, the veteran was afforded a VA examination in February 1990 wherein he reported a history of high blood pressure. He indicated that he was found to have borderline high blood pressure upon routine examination in December 1989 and was advised to watch salt intake and exercise regularly. The Board notes the veteran has not submitted any medical evidence to support this assertion. The physical examination showed the veteran's heart had a regular rate and rhythm without murmur. Blood pressure was 124/80. An ECG revealed normal sinus rhythm with sinus arrhythmia and right atrial enlargement. The ECG was considered borderline; however, no heart disease was diagnosed, to include arteriosclerosis. Chest x-rays were negative. The veteran next sought treatment in September 1999 from the Methodist Hospital of Indiana for prevention of coronary artery disease (CAD). The provider noted the veteran had a strong family history of heart disease. The veteran denied chest pain. The examiner noted the veteran had elevated cholesterol and was a smoker. The extensive history recorded at that time contains no references to the development of CAD or other cardiovascular disability, including hypertension, during or within the one year period after military service. The veteran was first diagnosed with CAD in January 2000, some 11 years after his discharge from service, which is outside the one-year presumptive period for arteriosclerosis/cardiovascular-renal disease. 38 C.F.R. §§ 3.307, 3.309. At that time, he was advised to follow a low salt and fat diet, as well as exercise regularly. He underwent his first angioplasty in January 2000. Since then, the veteran has been treated by various providers for CAD and undergone multiple angioplasties. Despite evidence of a current diagnosis of atherosclerotic heart disease, there is no evidence of record to substantiate the required second component of the Hickson inquiry - in- service occurrence or aggravation of a disease. Further, as noted above, CAD was diagnosed 11 years after the veteran's discharge from service. 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 disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (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. Cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000). 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). The Board notes that the absence of evidence constitutes negative evidence against the claim because it tends to disprove the claim that atherosclerotic heart disease first manifested in service which in turn resulted in a 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 atherosclerotic heart disease, between the period of active military service and the diagnosis in 2000 is itself evidence which tends to show that heart disease did not have its onset in service or for many years thereafter. With regard to the third element, evidence of a link between the current condition and service, the Board finds that the weight of the medical evidence is against a finding that the veteran's current atherosclerotic heart disease has any relation to his period of service. In this regard, the Board finds that the comments by Dr. F.C. under "Plan of Treatment" in July 2002 are not probative of the matter on appeal. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); see also Guerieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches, as is true of any evidence, the credibility and weight to the attached medical opinions are within the province of the Board). Dr. F.C. specifically stated, "[p]erhaps [veteran] can go to VA to get his benefits as his symptoms of CAD started while with military." There is no indication Dr. F.C. reviewed the veteran's service medical records. The Board notes the veteran first sought treatment from Dr. F.C. in August 2000 for complaints of chest pain and tightness in the throat and neck area. The veteran made no reference to his period of service. The ECG at that time showed no diagnostic abnormality. The veteran was diagnosed with atherosclerotic coronary heat disease. No nexus opinion was provided but for a strong family history of coronary heart disease. Thereafter, the veteran treated with Dr. F.C. in October 2000, January 2002, July 2002, and October 2002. No reference was made to the veteran's military service other than the comments delineated above in July 2002. The Board, in looking at the notation by Dr. F.C. in July 2002, finds that it was not based on any objective medical evidence pertaining to service other than the veteran's reports of symptoms of CAD during active military service. Further, Dr. F.C. failed to provide any rationale for the statement. The Board is not required to accept doctors' opinions that are based upon the veteran's recitation of medical history. See Godfrey v. Brown, 8 Vet. App. 113, 121 (1995). A complete review of the service medical records would have shown that they were negative for complaints, treatment, or diagnoses of heart disease. Moreover, atherosclerotic heart disease was not diagnosed until 11 years after the veteran's discharge from active service. In short, the Board finds that the July 2002 comments by Dr. F.C. were based on the history provided by the veteran, and not upon any objectively demonstrated inservice disease. A medical history told by the veteran and recorded by the examiner of the veteran, is not competent medical evidence of a diagnosis. See Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1992); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). For these reasons, the Board places limited probative weight on the July 2002 opinion. See Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record; bare conclusions, even those made by medical professionals, which are not accompanied by a factual predicate in the record, are not probative medical opinions). While the veteran contends that atherosclerotic heart disease has been present since his period of active military service and is related thereto, he is not a medical professional trained to diagnose disorders and their etiologies, and his statements do not constitute competent evidence of a medical nexus opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 494- 95 (1992). Because the evidence of record does not establish that the veteran suffered an event, injury, or disease in service and that the claimed disability may be associated with such, it is not necessary to obtain a medical examination or medical opinion in order to decide the claim in this case. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. V. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). The evidence is not in relative equipoise. Thus, the preponderance of the evidence is against the claim, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for atherosclerotic heart disease status post multiple angioplasties is denied. ____________________________________________ N. R. ROBIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs