Citation Nr: 0811638 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-03 459A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disorder, to include a coronary artery anomaly. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barone, Associate Counsel INTRODUCTION This matter is before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision, dated in March 2004, of the Department of Veterans Affairs (VA) Regional Office (RO) in Saint Petersburg, Florida, that denied the benefit sought on appeal. The veteran, who had active service from January 1964 to January 1987, appealed that decision to the BVA and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. The veteran's coronary artery anomaly of having only a single coronary artery is a congenital defect, and is not a disease or injury for the purposes of entitlement to VA compensation benefits. 2. The veteran's current cardiomyopathy was first manifested many years after service, and no chronic acquired heart disorder is shown to be causally or etiologically related to service. CONCLUSION OF LAW A heart disorder, to include a coronary artery anomaly, was not incurred in or aggravated during active service, nor may one be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1153, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the appellant's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The notification obligation in this case was accomplished by way of a letter from the RO to the appellant dated in January 2004. The Board notes that information concerning the effective date that could be assigned should the benefit sought be granted, Dingess v. Nicholson, 19 Vet. App. 473 (2006), was not provided until a subsequent letter dated June 2006. The June 2006 letter was arguably untimely; however, since this decision affirms the RO's decision, the appellant is not prejudiced by any defect in the timing of providing him that further information. The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The appellant has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied and will proceed to the merits of the appellant's appeal. The veteran claims entitlement to service connection for a heart disorder. Applicable law provides that service connection will be granted for disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. However, that an injury or disease occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular- renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Generally, to prove service connection, the record must contain: (1) Medical evidence of a current disability, (2) medical evidence or in certain circumstances, lay testimony, of an inservice incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or a relationship between a current disability and the inservice disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). This case involves a substantial quantity of pertinent medical evidence, including numerous diagnostic testing reports involving the veteran's heart function during his years of active duty service. Significantly, the record features three competent medical opinions addressing the veteran's heart-related medical history as it relates to his contentions in this appeal: that a chronic acquired heart disorder was first manifested during service or within a year of discharge from service, or that an acquired heart disorder was permanently aggravated during service. It is clear from the record that the veteran complained of pertinent symptoms and received medical attention concerning his cardiac function on numerous occasions during service. The record contains ample documented evidence of medical attention concerning cardiac function during service, dating from as early as 1967 through the veteran's retirement from service. There is no controversy in this case regarding this treatment history. Rather, this appeal features a question of whether any current chronic acquired heart disorder is etiologically related to any instance of cardiac symptomatology during service, or was permanently aggravated during service, or is otherwise etiologically linked to service. After review of the entire claims folder, and in consideration of the competent medical opinions interpreting the significant medical history and documented diagnostic testing, the Board finds that the preponderance of the evidence weighs against service connection in this case. The Board has reviewed the pertinent medical history, including the service medical records and post-service medical records showing treatment and diagnostic testing regarding the veteran's cardiac function. In light of the specialized nature of the available cardiac treatment records, and the complicated medical questions in this case, the evidence the Board must most directly evaluate features the set of recent medical opinions interpreting and explaining the veteran's documented cardiac medical history. The Board cannot directly interpret the contemporaneous specialized cardiac diagnostic information contained in the record without medical expertise. It is well-settled that in its decisions, the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board notes that the veteran has submitted a private medical opinion in support of his claim dated in August 2003. In this statement, the veteran's private cardiologist expresses that he first treated the veteran in 1998 when the veteran presented with chest discomfort. According the statement, in 1998 the veteran "had mild left ventricular dysfunction and no significant coronary artery disease." Stemming from that, the veteran "has been carrying the diagnosis of congestive cardiomyopathy with mild left ventricular dysfunction since that time." The cardiologist explains that, despite the fact that the diagnosis dates from 1998, "prior records from 1982 demonstrate an abnormal EKG, chest pain and shortness of breath even at that time." Furthermore, the cardiologist observes that "An EKG back as far as 1975 likewise demonstrates abnormalities which [have] been persistent since then." The cardiologist's letter concludes, significantly, that "It is entirely conceivable that his problem has been going on at least since 1975." The Board has considered this competent medical statement which suggests that veteran may have developed a chronic acquired heart disease during his period of active service. The Board notes that the cardiologist's factual assertions are consistent with the record. However, although the evidence is competent, the Board is unable to accord the August 2003 cardiologist's statement significant probative value in support of the veteran's claim. The August 2003 statement can be accorded no substantial probative value because its conclusion is speculative in nature, identifying a mere possibility rather than any probability. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of 'may' also implies 'may or may not' and is too speculative to establish medical nexus); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as 'could have been' is not probative). See also Libertine v. Brown, 9 Vet. App. 521, 523 (1996); Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); see also 38 C.F.R. § 3.102 (describing the concept of reasonable doubt in adjudicating service connection claims as not being one arising from pure speculation or remote possibility). Thus, the conclusion of the August 2003 cardiologist's statement that "It is entirely conceivable that his problem has been going on at least since 1975" is not a significantly probative medical demonstration of a heart pathology etiologically related to service. An April 2005 VA examination report is of record. This report expressly reflects review of the claims folder to include the veteran's pertinent documented medical history. This report shows that upon personal examination of the veteran, diagnoses of congestive cardiomyopathy, dyslipidemia, and essential hypertension were noted. The examiner acknowledged the August 2003 cardiologist's letter suggesting that it is "conceivable" that a chronic heart pathology was etiologically related to service, and independently concluded that "It would be speculative to state that the veteran had cardiomyopathy during this military service as there is no definite diagnosis made of this during his military duty." The examiner further noted that the veteran's service medical records indicate "nonspecific changes on his EKG" and refrained from further comment as the April 2005 examiner acknowledged that she was not a cardiologist. As documented in the claims folder, in February 2006 the RO requested that the claims folder be forwarded to a cardiologist specialist for appropriate review and a competent etiology opinion. The Board notes, in passing, that under the presumption of administrative regularity of government actions, it may be presumable that the RO's documented February 2006 request for a VA cardiologist's review of the claims folder resulted in proper delivery of the request to be completed by a VA cardiologist, in the absence of specific evidence to the contrary. See, e.g., Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). See also Schoolman v. West, 12 Vet. App. 307, 310 (1999) (''clear evidence to the contrary' is required to rebut the presumption of regularity.'). Following the RO's February 2006 request, the resulting April 2006 VA examiner's report does not expressly confirm that the author is a cardiologist. As discussed below, however, additional development has been accomplished which reduces the significance of this ambiguity in the record. The Board finds that the outcome of this case is unaffected regardless of whether the April 2006 VA examiner's report is considered to be the opinion of a medical doctor, or is considered to be especially probative as the opinion of a cardiology specialist. The April 2006 report features a thorough discussion of the documented medical evidence of record in the claims folder. The April 2006 report notes that the veteran left the service in 1987, and subsequently presented to his private cardiologist in 1998 with symptoms leading to diagnosis of "a mild non-ischemic cardiomyopathy." The April 2006 report addresses the pertinent assertion that "during this period his EKG apparently demonstrated the same changes that were noted as early as 1967," and acknowledges the August 2003 private cardiologist's statement "which implied that his EKG changes, that were present while he was in the Air Force, could have represented an early phase of his current cardiomyopathy...." In this regard, the doctor authoring the April 2006 VA examiner's report suggests that the veteran's private cardiologist "did not have access to his full service medical record and therefore perhaps was unaware of the thorough cardiac evaluation this patient underwent in 1982, when he had the same EKG changes that he apparently has now." Significantly, the April 2006 VA examiner's report offers the opinion that "I personally do not think his documented EKG changes (that ...were likely present at the time of enlistment) present as early as 1967 were representative of a cardiomyopathic condition that later became ... apparent in 1998." In the April 2006 report, the VA examiner clearly explains that "There is clearly no cardiomyopathy present at the time of his thorough cardiac evaluation in 1982 and to say that the patient had a service connected cardiac condition, is entirely speculative without any corroborating evidence (less than likely)." The April 2006 VA doctor's report draws several highly significant conclusions. Primarily, the report states "I do not think that this patient has a service connected cardiac condition." This conclusion is explained with a rationale including that, "his EKG is likely congenital in origin or certainly was present prior to his enlistment in the service, but regardless he had an extreme[ly] thorough cardiac evaluation in 1982 to evaluate these EKG changes as well as atypical chest pain." The VA examiner further explains that "This [1982] evaluation was entirely normal and I do not think that his mild cardiomyopathy that he has apparently developed as documented in 1998 represents anything that would have been present or related to his military service." In the Board's view, the April 2005 VA examination report is probative medical evidence to the extent it presents a medical opinion, informed by a thorough review of the medical evidence of the record, that any suggested link between a current heart disability and military service would be speculative. The April 2006 VA examiner's report, although not clearly identifying itself as a cardiologist's report, does supplement the record with another competent doctor's thorough discussion of all of the pertinent evidence of record and finds that no current acquired heart disease is causally linked to military service. The Board notes that the factual assertions in both reports are consistent with what is shown in the record. The Board requested a Veterans Health Administration (VHA) medical opinion in September 2006. The veteran was advised of the request that same month. The Board sought this additional development to add necessary clarity to the record as the April 2006 examination report leaves some confusion as to whether the author was a cardiologist. Also, there remained pertinent unaddressed medical questions in need of more adequate discussion, including regarding whether any cardiac diagnosis which may have pre-existed service was an acquired disease aggravated during service or, rather, was congenital in nature. The resulting October 2007 VHA cardiologist's letter presents a probative and persuasive competent analysis of the evidence in this case. The letter contains a thorough and detailed discussion of the documented medical evidence of record, and reflects very careful consideration of the claims folder. In presenting the cardiologist's analysis and conclusions, the letter first addresses the question of whether the veteran entered service with any cardiac defect, abnormality, or disease. The VHA cardiologist explains that the veteran entered the service with the coronary anomaly of having only a single coronary artery, a left coronary artery in this case. Significantly, the VHA cardiologist explains in definitive terms that the single coronary artery "is a congenital abnormality." The abnormality "generally does not affect coronary blood flow." Moreover, "the multiple stress tests that the patient had confirm that there was no obstruction to coronary blood flow." The letter goes on to refer to the specifics of the veteran's documented EKG results from March 1967; "the ST and T wave changes were present on that EKG and further EKG over the years during the service showed no change." The October 2007 VHA cardiologist's letter continues on to address whether any cardiac diagnosis underwent an increase in severity during service. In this regard, the VHA cardiologist notes that "The EKG changes had been thoroughly investigated during service (exercise EKG stress tests, coronary angiography, thallium testing and echocardiography)." The VHA cardiologist cites that "No cause could be found for these changes and the heart function was good." On this point, the cardiologist concludes that "There has been no change or deterioration during service." The October 2007 VHA cardiologist's letter finally addresses whether any currently diagnosed cardiac defect, abnormality, or disease is etiologically related to symptomatology shown in service medical records or whether any current cardiac pathology had its onset during service. The VHA cardiologist's final conclusion is that no currently diagnosed cardiac disease had clinical onset during service. The VHA letter clearly explains the rationale that "The chest pain that the patient had been complaining of during service was non-cardiac in origin and it is not causally or etiologically related to his current cardiac diagnosis of idiopathic congestive cardiomyopathy." The cardiologist's letter concludes that "His cardiomyopathy did not have clinical onset during service or in the post service period ending January 1988." The Board views that October 2007 VHA cardiologist's letter as the most probative evidence in this case. This competent medical statement from a cardiology specialist, informed by a thorough review and discussion of the pertinent evidence in the claims folder, presents a persuasive rationale for the medical opinion weighing against this claim. The Board notes that the cardiologist's factual assertions are consistent with the record. The most significant contrary evidence of record is the August 2003 private cardiologist's statement, but the August 2003 statement merely indicates a possibility of an etiological link between current heart disease and service, based upon a rationale vaguely referencing the fact that there were 'abnormal' EKG results during service. The October 2007 VHA letter discusses the service medical records, and broader medical history, in significant detail to conclude that the documented medical evidence does not support any such etiological link. To the extent that the veteran's heart disorder has been characterized as a congenital defect, congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2007). In the absence of superimposed disease or injury, service connection may not be allowed for a congenital defect. The competent medical evidence of record indicates that no current heart disorder is etiologically related to active service. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA, 38 U.S.C.A. § 5107(a), and the appellant was clearly advised of the need to submit medical evidence of a relationship between a current heart disorder and service. While the appellant is clearly of the opinion that his heart disorder is related to service, as a lay person, the appellant is not competent to offer an opinion that requires specialized training, such as the etiology of a medical disorder or the disability. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Accordingly, the Board concludes that service connection for a heart disorder, to include a coronary artery anomaly, is not established. The preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107. ORDER Service connection for a heart disorder, to include a coronary artery anomaly, is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs