Citation Nr: 0811651 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-06 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for cerebrovascular disease, including transient ischemic attacks. 2. Entitlement to service connection for a heart disorder, including coronary artery disease and hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1950 to June 1962. He had subsequent service with the Army National Guard with a period of active duty from April 1982 to February 1993, with a period of full time service from June 1992 to February 1993. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Oakland Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for hypertension, coronary artery disease, and residuals of a stroke. In March 2008, the Board granted a motion to advance the case on the Board's docket due to the appellant's advanced age. FINDINGS OF FACT 1. The veteran did not have heart disorder, including coronary artery disease and hypertension, or cerebrovascular disease during his May 1950 to June 1962 active service, nor was a heart disorder or cerebrovascular disease manifested to a degree of 10 percent disability during the year following such active duty. 2. The medical and other evidence of record indicates that the appellant had cerebrovascular disease, which pre-existed his June 1992 to February 1993 active service and was aggravated by such military service. 3. The medical and other evidence of record indicates that the appellant had a heart disorder, including CAD and hypertension, which pre-existed his June 1992 to February 1993 active service and was not aggravated by such military. CONCLUSIONS OF LAW 1. A cerebrovascular disease was aggravated by June 1992 to February 1993 active military service. 38 U.S.C.A. §§ 1110, 1111, 1153 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.306 (2007). 2. A heart disorder, including coronary artery disease and hypertension was not incurred in or aggravated by active duty. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1137, 1153 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.304, 3.306, 3.307(a)(1), 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify & Assist The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 VCAA notice 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). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). In November 2002 and March 2003 correspondence (prior to the February 2004 rating decision), the appellant was advised of what type of evidence was needed to substantiate the claims, and of his and VA's responsibilities in the development of the claim. While the letters did not advise the veteran verbatim to submit everything he had pertinent to his claims, it explained the type of evidence necessary to substantiate his claims and asked him to submit any such evidence. This was equivalent to advising him to submit everything in his possession pertinent to the claim. The February 2004 rating decision and the June 2004 statement of the case provided the text of applicable regulations, and explained what the evidence showed and why the claim was denied. Although the veteran was not provided notice regarding criteria for rating the disabilities at issue and effective dates of awards, there was no indication that any failure on the part of VA to provide such notice would reasonably affect the outcome of this case. Therefore, the Board finds that any such failure was harmless. See Mayfield v. Nicholson, supra; see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran and his representative have had full opportunity to supplement the record and participate in the adjudicatory process. The veteran's service medical records and VA and private treatment records have been secured. The RO arranged for a VA medical examination. The veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. II. Factual Background Service medical and personnel records from the veteran's first period of active service, including a June 1962 separation examination are negative for any complaints, treatment, or findings of cerebrovascular disease or a heart disorder. Army National Guard records included a June 1988 medical screening summary that indicated that the veteran should not be cleared to participate in the Army Physical Fitness Training and Testing Program without consultation with an internal medicine or cardiologist specialist due to an abnormal or elevated risk index, clinical factor, fasting blood sugar, or electrocardiogram (ECG). A September 1990 periodic physical reported elevated blood pressure of 140/110. On his report of medical history the veteran indicated that he was being treated by a private physician for hypertension that was diagnosed in January 1990. In October 1990, hypertension and high blood pressure was reported on a permanent profile. A November 1990 medical screening summary regarding the cardiovascular risk screening program (CVSP) indicated that the veteran's blood pressure was 126/82. An ECG was within normal limits and his serum cholesterol was 179 mg. His risk index was 7.94%. Under Army CVSP criteria, he was NOT cleared for the Army's Physical Fitness Test. His profile indicated that he could not crawl, stop, run, jump, or march for periods greater than 10 minutes. He could not handle materials that weighed more than 10 pounds. He was not to do any overhead work and no mandatory strenuous physical activity. The profile was valid for 179 days. A January 1992 consultation report noted that an echocardiogram revealed sinus rhythm was within normal limits, he had fair exercise tolerance limited by leg fatigue, there was no chest pain or ischemic ST changes, there were no arrhythmias, and there was a hypertensive blood pressure response to exercise. In July 1992, a medical screening summary indicated that the under the Army CVSO criteria, he was cleared for the Army's Physical Fitness Test. A September 1992 record indicated that the veteran had been working at the Southwest Asia Redistribution of 1000 Vehicle Site at Camp Roberts in which the project was planned to be extended from October 1992 to September 1993. The request for extension of Temporary Tour of Active Duty was granted. An October 1992 letter requested information for the veteran's doctor to determine whether he could be assigned light duties. A subsequent October 1992 record noted that the veteran had increased blood pressure from driving around 800 miles in two days. His blood pressure was 146/108. A subsequent November 1992 record indicated that his blood pressure was completely normal. A January 1993 record indicated that the veteran was employed on continuous active duty (Title 10) since June 1992 in which part of his duties included that of a heavy wheel vehicle mechanic and Assistant Team Leader in his supervisor's absence. 1988 to 1991 treatment records from Valley Heart Associates and Doctors Medical Center included a December 1988 record that showed that the veteran recently underwent a routine National Guard physical in which his cholesterol was 218 mgs. He did not report a history of heart murmurs and was never known to have high cholesterol. He smoked one pack of cigarettes per day for the last 35 to 40 years, but quit smoking approximately one month ago. To his knowledge no one in his family had heart trouble or strokes. After examination, his cardiac diagnoses were sinus rhythm, hypercholesterolemia, and probable chronic lung disease from coronary artery disease from arteriosclerotic cardiovascular disease. A January 1989 record indicated that an echocardiogram suggested mitral valve prolapse with mild mitral regurgitation. January 1990 records indicated that the veteran had sudden onset of gait ataxia and parethesias involving the right face and right upper extremity on the day of admission. There was also possibly some dysarthric speech. It was noted that there were no prior transient ischemic attack cerebrovascular accident symptoms. It was felt that the veteran had a transient ischemic attack/cerebrovascular accident episode in the vertebral distributions with primary involvement of the cerebellum. In March 1990 his resting blood pressure was 108/70 with a peak blood pressure of 240/100, which represented an abnormal blood pressure response to exercise. March 1990 chest radiographs showed pleural thickening and calcification suggesting asbestosis, associated with mild interstitial pulmonary scarring. There was no active cardiopulmonary disease otherwise. In March 1990 he was admitted and underwent right and left cardiac catheterization, left ventricular angiogram, and coronary angiogram. The impression was normal right sided hemodynamic, normal left ventricular function, 90% diffuse disease of the circumflex branch going as the obtuse marginal branch with very slow flow in this small caliber branch, and coronary artery venous fistula starting from proximal left anterior descending and going into the pulmonary artery. His discharge diagnosis was status post cardiac catheterization and coronary angiogram, coronary artery disease, coronary arterial fistula, and mild mitral valve prolapse by echo with mild mitral insufficiency. After discharge, he underwent treadmill testing. The impression was negative for ischemia by EKG criteria, there was no angina during treadmill, there were no significant arrhythmias, and there was a normal blood pressure response to exercise. A May 1990 record reported that the veteran was evaluated in March 1990 for some chest tightness and had an abnormal Thallium treadmill, which was suggestive of inferior and lateral wall stress induced ischemia. The record also referred to a January 1990 echocardiogram that showed minimal mitral valve prolapse with mild mitral insufficiency, mildly thickened leaflets and mils left atrial enlargement, mild aortic root dilation and normal left ventricular function and noted a history of transient ischemic attacks in the past. In May 1991, his blood pressure was 170/106. 2001 treatment records from Memorial Hospital Association noted a history of left sided cerebrovascular accident with right sided weakness ad aphasia, a history of hyerlipidemia, and a history of hypertension. A February 2001 neurological consult indicated that the veteran had ischemic left hemispheric infarction. His blood pressure was 165/105 and his pulse rate was 112. A subsequent February 2001 record noted a blood pressure of 130/72. The impression was TIA with right sided weakness with previous history of TIA and a history of hypertension. In March 2001, he underwent a left carotid endarterectomy. The postoperative diagnosis was extracranial vascular disease with left preclusive internal carotid artery stenosis and left hemispheric cerebrovascular accident. A February 2001 record noted that the veteran had severe left internal carotid stenosis. 2001 to 2002 from VA Palo Alto Health Care System showed a history of hypertension, not otherwise symptomatic, cerebrovascular accident in February 2001, and a history of TIA. On January 2004 VA examination, it was noted that the claims file was reviewed. The examiner noted that the veteran's history was confusing. A review of the claims file indicated that the veteran had TIA's, hypertension, as well as coronary artery disease on a study done in 1990, which was two years before he entered his military service A catheterization done around that time revealed high grade disease of the circumflex artery, as well as a coronary AV fistula. The examiner noted that nevertheless, the veteran was taken on to active duty for an eight month period. The veteran's wife reported that the veteran was having chest pain at that time and occasionally took nitroglycerin. Over the last years, he did not require any nitroglycerin and did not have any episodes of congestive heart failure. He had transient episodes of confusion. In February 2001, he had a major stroke. At that time, he was left with expressive dysphasia, as well as right-sided weakness, with his arm being worse than his leg. He currently uses a medically prescribed cane and his mental abilities are limited. He is being treated for hypertension and his coronary artery disease appears to be quiescent. He is living with the residuals of his stroke that occurred in 2001. On examination, his blood pressure was 138 to 142 over 88 to 90. He had normal heart tones and no murmurs. Cranial nerves II through XII were intact. Sensory examination was unremarkable. There was moderate weakness of all major muscle groups in the right upper and right lower extremity. He had incoordination on the right side. His gait was markedly abnormal because of the prior cerebrovascular accident. The diagnoses included hypertension; ischemic heart disease with single-vessel coronary artery disease, coronary arteriovenous fistula; and status post left middle cerebral thrombosis, left with a dysphasia and hemiparesis on the right. The examiner noted that the veteran's problems pre-dated his entry in the military in 1992. The examiner opined that the military is a very stressful environment, and for someone with this degree of undiagnosed problems to be on active duty was a grave error and contributed to the progression of the veteran's cerebrovascular disease. The examiner noted that the veteran's coronary artery disease was quiescent with no grave consequence and his hypertension was well controlled and under no great consequence. However, the examiner stated that veteran's multiple TIA's that led to a significant stroke were aggravated by the veteran's active military service. The examiner also indicated that the claims file was reviewed in detail. III. Criteria & Analysis In seeking VA disability compensation, the veteran must establish that current disability results from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Such a disability is called "service connected." 38 U.S.C.A. § 101(16) (West 2002). "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Even if there is no record of a cardiovascular-renal disease, including coronary artery disease and hypertension and/or cerebrovascular disease, in active service, incurrence or aggravation in service will be presumed if it was manifest to a compensable degree within one year after active military service, if the claimant had 90 days of continuous active service during a period of war or after December 31, 1946. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.307, 3.309 (2007). All questions of fact and law pertaining to entitlement to service connection and disability compensation pertain to the "period of service in which the said injury or disease was incurred, or preexisting injury or disease was aggravated." 38 U.S.C.A. §§ 1110, 1131. Consequently, this decision must consider the veteran's separate periods of service discretely. A. United States Navy Active Duty from May 1950 to June 1962 "Active duty," in pertinent part, means "full-time duty in the Armed Forces, other than active duty for training." 38 U.S.C.A. § 101(21)(A). The veteran is presumed of sound cardiovascular and cerebrovascular health when he entered on active duty, see 38 U.S.C.A. § 101(21) (active duty defined), in the Navy in May 1950; there is no evidence of record to rebut that presumption. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2007). There is no evidence of the onset of coronary artery disease, hypertension, or cerebrovascular disease during that service. There is no evidence of a diagnosis of coronary artery disease, hypertension, or cerebrovascular disease, or of symptoms demonstrative of 10 percent disabling coronary artery disease or hypertension, see 38 C.F.R. § 4.104, during the year following separation from active duty. There is a preponderance of the evidence against finding coronary artery or cerebrovascular disease or hypertension was chronic during active duty or during an applicable presumptive period, such that any later manifestation is service connected. 38 U.S.C.A. § 1101, 1112(a), 1113; 38 C.F.R. §§ 3.307, 3.309(a). The hiatus in the medical records between the veteran's separation from Navy active duty in June 1962 and the first documentation of hypertension, CAD, and cerebrovascular disease and the absence of any other evidence supporting a finding that either condition was noted in service or had continuity of symptomatology between the active duty and the present, is strong evidence against awarding service connection for CAD, hypertension, or cerebrovascular disease based on continuity of symptomatology with a condition noted in service. 38 C.F.R. § 3.303(b). Likewise, the same lack of evidence precludes awarding service connection for the disorders based on evidence of a post-active duty diagnosis shown by all of the evidence, including that pertinent to service, to have been incurred in such service. 38 C.F.R. § 3.303(d). In sum, to the extent the veteran's claim encompassed allegation of incurrence or aggravation during his regular active duty in the Navy, there is a preponderance of the evidence against the claims. B. Temporary Title 10 Active Duty Tour from June 1992 to February 1993 1. Cerebrovascular Disease It is not in dispute that the veteran had transient ischemic attacks prior to being activated from June 1992 to February 1993. However, the pertinent fact to be determined, therefore, is whether the veteran's cerebrovascular disease, including TIA's underwent aggravation during active duty. The January 2004 VA examiner noted that the claims file was reviewed in detail. The examiner summarized the progress of the disorder from a history of TIA's and a complicating heart disorder through transient episodes of confusion, and ultimately, a major stroke in February 2001. The VA examiner opined that the military was a very stressful environment, and for someone with this degree of undiagnosed problems to be on active duty was a grave error and contributed to the progression of the veteran's cerebrovascular disease. He stated that the veteran's cerebrovascular disease was aggravated by the veteran's active military service. Here, the course of the veteran's cerebrovascular disease well typifies the sustained increase in severity that distinguishes aggravation, 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2006), from temporary exacerbation. See Hunt v. Derwinski, 1 Vet. App. 292 (1991) (discussing distinction between aggravation as an increase in an underlying pathology and exacerbation, characterized by temporary increase in symptoms). In view of the foregoing, and considering the doctrine of resolving any reasonable doubt in favor of the veteran, we will conclude that the veteran suffered aggravation of cerebrovascular disease during his temporary tour of active duty, and that he is therefore entitled to service connection for the resulting disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 2. Coronary Artery Disease and Hypertension It is not in dispute that the veteran had CAD and hypertension before being activated from June 1992 to February 1993. However, the pertinent fact to be determined, therefore, is whether the veteran's CAD and hypertension underwent aggravation during active duty. "If a disability is found to have preexisted service, then service connection may be predicated only upon a finding of aggravation during service." Paulson v. Brown, 7 Vet. App. 466, 468 (1995). The medical evidence shows a hypertensive blood pressure reading in May 1991, prior to active duty as 170/106. During active duty he was seen in October 1992 with an increased blood pressure reading at 146/108. A November 1992 record then indicated that his blood pressure was completely normal. Post active duty medical evidence included a January 2004 VA examination in which the veteran's blood pressure was reported as ranging from 138 to 142 over 88 to 90. Also the VA examiner specifically stated that the veteran's hypertension was well controlled and under no great consequence. Here, the post medical evidence does not reveal aggravation during active duty. Aggravation of a disorder is shown by comparison of its severity before, during, and after service. See 3.306(b). VA may not concede aggravation where there has been no increase in the severity of a disability in service. Comparison of the blood pressure measurements of record that pre-date June 1992 and the blood pressure measurement taken after February 2003 with measurements taken during the veteran's active duty show no change in blood pressure before and after the period of active duty that could be aggravation of hypertension. Likewise, although the pre-active service medical evidence included the diagnosis of status post cardiac catheterization and coronary angiogram, coronary artery disease, coronary arterial fistula, and mild mitral valve prolapse by echo with mild mitral insufficiency. Active Duty treatment records noted one treatment in October 1992 for increased blood pressure. Post service medical records, included a January 2004 VA examination in which the examiner specifically stated that the veteran's coronary artery disease was quiescent with no grave consequence. Again, the medical evidence does not show aggravation of hypertension or CAD during the period of temporary active duty. In summary, the veteran did not incur or suffer aggravation of CAD or hypertension during any period of active service. Service connection must be denied. 38 U.S.C.A. §§ 1110, 1131 1153; 38 C.F.R. §§ 3.303, 3.306 ORDER Service connection for cerebrovascular disease is granted. Service connection for a heart disorder, including coronary artery disease and hypertension is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs