Citation Nr: 0812446 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-40 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for post-operative aortic valve replacement with subacute bacterial endocarditis and congestive heart failure. REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD A. Cryan, Associate Counsel INTRODUCTION The veteran served on active duty from October 1961 to August 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida which denied his claim. The Board notes that the veteran was informed of the denial of his claim by way of a letter dated November 15, 2002. He submitted a letter requesting a de novo review of his claim, received at the RO in March 2003. The RO issued a statement of the case (SOC) in April 2003. The veteran submitted a statement to the RO date stamped October 22, 2003, and November 4, 2003, and indicated that he disagreed with the November 2002 rating decision. By way of a January 2004 letter, the RO informed the veteran that because a VA Form 9 was not received at the RO within sixty days of the SOC, the appeal period had expired and he needed to submit new and material evidence to reopen his claim. However, because the RO accepted the March 2003 statement as a notice of disagreement and issued a SOC in April 2003, the statement date stamped in October 2003 and November 2003 should have been accepted as a substantive appeal in lieu of a VA Form 9. Because this statement was received within the one year period from the date of mailing of the notification of the rating decision, the veteran's substantive appeal was in fact timely and his appeal was properly perfected. See 38 C.F.R. §§ 20.202, 20.302. Consequently, the Board will adjudicate the issue listed on the cover page of this decision. Subsequent to the certification of the veteran's appeal to the Board, the veteran submitted additional medical evidence and a waiver of consideration by the agency of original jurisdiction (AOJ). Consequently, the veteran is not prejudiced by the Board's adjudication of the issue on appeal. FINDING OF FACT The veteran does not have post-operative aortic valve replacement with subacute bacterial endocarditis and congestive heart failure is that is attributable to military service. CONCLUSION OF LAW The veteran does not have post-operative aortic valve replacement with subacute bacterial endocarditis and congestive heart failure that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran claims that he had a heart disability that was present at his entrance to service and was aggravated by service or in the alternative that exposure to radar during service caused his heart disability. The veteran's complete service medical records (SMRs) were unavailable from the National Personnel Records Center (NPRC) in St. Louis, Missouri. The NPRC reported that an extensive and thorough search was conducted and the SMRs were not located. The NPRC concluded that the records do not exist, the NPRC does not have them, or that further efforts to locate them at NPRC would be futile. The veteran was informed of the NPRC's findings and submitted SMRs that he had in his possession. The SMRs associated with the claims file are negative for any reference to treatment for or a diagnosis of any heart disability. On an August 1961 report of medical history prepared at his enlistment to service, the veteran denied shortness of breath, pain or pressure in his chest, palpitation or pounding heart, high or low blood pressure, and dizziness or fainting spells. The examining physician did not report that the veteran had any disabilities or defects on the report of medical history. The veteran's separation examination dated in July 1965 revealed a normal examination of the heart, lungs, and chest. Also associated with the SMRs was a February 1968 enlistment examination to the U.S. Navy Reserves which included a normal clinical evaluation of the veteran's heart, lungs, and chest. The veteran denied shortness of breath, pain or pressure in his chest, palpitation or pounding heart, high or low blood pressure, and dizziness or fainting spells on his report of medical history prepared in conjunction with the February 1968 enlistment examination. Associated with the claims file are private treatment reports from Mount Sinai Hospital. In January 1970 the veteran was seen for a cardiac evaluation. At that time he denied a history of rheumatic fever and chorea and said he had no difficulty keeping up with his peers. The examiner said the veteran worked as a radar operator in the Navy from 1961 to 1965 and was discharged with no disabilities. Additionally, the examiner stated that a pre-employment physical performed on the veteran in early 1969 revealed no disabilities. In June 1969 the veteran developed dizziness and in August 1969 he had several episodes of heart palpitations and developed shortness of breath if he walked thirty minutes at a normal pace. The examiner reported that the veteran was hospitalized from November to December 1969 at which time he was found to have systolic and diastolic murmurs in the aortic area. Chest x-rays were suggestive of viral pneumonitis. The examiner diagnosed the veteran with rheumatic heart disease with superimposed subacute bacterial endocarditis, treated and healed; a moderately enlarged heart; aortic insufficiency, and normal sinus rhythm with either an S-3 gallop or premature closure of the mitral valve, probable premature closure of the mitral valve, Class III-C, in an undigitalized state. In September 1970 the veteran underwent a replacement of the aortic valve with a Bjork-Shiley prosthesis. He was diagnosed with aortic valve insufficiency, etiology undetermined. The veteran was hospitalized from June to July 1971 and diagnosed with rheumatic heart disease, status nine-month postoperative aortic valve replacement, no cardiomegaly, compensated normal sinus rhythm, right bundle branch block, and functional Class I-B. Also associated with the claims file is a physician's statement from M. Lowry, M.D., dated in September 1971. Dr. Lowry diagnosed the veteran with bacterial endocarditis followed by aortic valve replacement. He said except for the diagnosed heart problems the veteran was in good health, currently asymptomatic and should have no difficulty with moderately strenuous work. The veteran was afforded a VA examination in November 1971 at which time he was diagnosed with aortic valve damage, etiology unknown, probably due to rheumatic heart disease, a history of subacute bacterial endocarditis due to aortic valve damage, post-operative aortic valve replacement, and compensated congestive heart failure, Class II-C. Associated with the claims file are private treatment reports from Southwest Florida Regional Medical Center dated from September 1993 to October 2001. X-rays of the chest obtained in May 2000 revealed that the veteran was status-post sternal thoracotomy with no evidence of active cardiopulmonary disease. In September 2000 the veteran was reported to have a past medical history significant for hypertension and rheumatic heart disease among other things. None of the records link the veteran's heart disabilities to his military service. The veteran's parents submitted a statement dated in July 2000 in which they reported that the veteran was never diagnosed with rheumatic fever or any other disease that would cause damage to his heart valves. They indicated that they noticed that the veteran was not as active as other children when he was growing up. The veteran was afforded a VA examination in December 2000 at which time the examiner assessed him with aortic valve replacement in 1970, chronic anticoagulation with Coumadin due to valve prosthesis, angina, and hypertension. Associated with the claims file is a July 2002 letter from the Defense Threat Reduction Agency which indicates that the veteran's claimed disabilities were not radiogenic diseases and as such a radiation dose assessment did not need to be prepared. Also associated with the claims file are private treatment reports from Lee Memorial Health System dated from March 2003 to April 2003. In March 2003 the veteran was assessed with left ventricular hypertrophy with severe left ventricular dysfunction, mitral annular calcification with dilated left atrium and mild regurgitation, mild tricuspid regurgitation, probable apical thrombus, and mild aortic regurgitation. The veteran was admitted with complaints of shortness of breath for a period of time in March 2003 to April 2003 and diagnosed with congestive heart failure, seizure, and hypertension. None of the veteran's cardiac disabilities were linked to his period of military service. VA outpatient treatment reports dated from December 1998 to October 2004 were associated with the claims file and reveal diagnoses of moderate cardiomegaly, aortic valve disease, hypertension, status-post aortic heart valve replacement in 1970 and 2001 with Coumadin use, aortic valve regurgitation, aortic stenosis, severe concentric left ventricular hypertrophy, cardiac dysrhythmia, atherosclerotic heart disease, silent myocardial infarction possible by electrocardiogram (EKG), possible mild anginal syndrome, cardiomyopathy, and a past medical history of rheumatic fever, endocarditis, and congestive heart failure. None of the records relate the veteran's heart disabilities to his military service. As a preliminary matter, the Board notes that in an undated memorandum, the RO made an administrative determination that the veteran's service medical records were not available from the National Personnel Records Center (NPRC). Under such circumstances, there is a heightened duty to search for medical information from alternative sources in order to reconstruct the SMRs. Jolley v. Derwinski, 1 Vet. App. 37, 39-40 (1990); Cuevas v. Principi, 3 Vet. App. 543, 548 (1992). VA is also under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). The Board observes that the RO made an initial attempt to retrieve the veteran's SMRs from the NPRC in February 1988. The RO requested only the entrance examination and separation examination. The NPRC responded that no health/SMRs were found at the NPRC. The RO subsequently contacted the service medical records division of the VA Records Management Center in November 1998. No records were provided. The RO made requests on subsequent occasions to the NPRC in December 2000, August 2002, and October 2002. In October 2002, the NPRC reported that after an extensive and thorough search the veteran's SMRs were not located and concluded that the records do not exist, the NPRC does not have them, or that further efforts to locate them at NPRC would be futile. In October 2002, the veteran was contacted by telephone and informed that his SMRs were not located. The veteran reported that that he would submit the SMRs he had in his possession. The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). In addition, certain chronic diseases, including endocarditis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Appeals for Veterans Claims (Court) lay observation is competent. If chronicity is not shown, service connection may still be established on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to pertinent symptomatology experienced since service. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (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); accord Caluza v. Brown, 7 Vet. App. 498 (1995). As noted above the veteran claims that he had a pre-existing heart disability which was aggravated by his military service. Every veteran who served in the active military, naval, or air service after December 31, 1946, is taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137 (West 2002). Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304(b) (2007), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id; § 3.304(b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service-the second step necessary to rebut the presumption of soundness-a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West 2002). If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. In the present case, the Board finds that the veteran's heart disabilities were not noted at the time of the veteran's examination, acceptance, and enrollment into service. As outlined above, applicable law contemplates that something more than a pre-service history be recorded in a report of an induction or enlistment examination in order for a condition to be deemed "noted," as that term is used in 38 U.S.C.A. § 1111. Here, the SMRs do not document any reports or findings related to heart disabilities. In fact, the veteran denied shortness of breath, pain or pressure in his chest, palpitation or pounding heart, high or low blood pressure, and dizziness or fainting spells on his report of medical history at his enlistment to service. Because the veteran's heart disabilities were not "noted" at the time of his examination, acceptance, and enrollment into service, he is entitled to the presumption of soundness. In the alternative, the veteran claims that his heart disabilities were caused by his military service. As noted above, the veteran's SMRs do not document any treatment for or diagnoses related to any heart disabilities. At his July 1965 separation examination a clinical evaluation of the veteran's heart, lungs, and chest was reported to be normal. None of the medical evidence of record, either VA or private, links the veteran's claimed heart disabilities to his period of service. Private treatment reports from Mount Sinai document that the veteran was diagnosed with rheumatic heart disease with superimposed subacute bacterial endocarditis, treated and healed; a moderately enlarged heart; aortic insufficiency, and normal sinus rhythm with either an S-3 gallop or premature closure of the mitral valve, probable premature closure of the mitral valve, Class III-C, in an undigitalized state in January 1970 and aortic valve insufficiency, etiology undetermined, in September 1970. Additionally, there is no competent evidence of endocarditis within a year of the veteran's separation from service, and no competent evidence linking any current heart disabilities to the veteran's military service including his claimed exposure to radar. The preponderance of the evidence is against the claim. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Board is unable to identify a reasonable basis for granting service connection for post-operative aortic valve replacement with subacute bacterial endocarditis and congestive heart failure. See Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). The Board notes that the veteran has alleged that his post- operative aortic valve replacement with subacute bacterial endocarditis and congestive heart failure is related to his military service. While the veteran is capable of providing information regarding the current symptoms, as a layperson, he is not qualified to offer medical opinions. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Veterans Claims Assistance Act of 2000 In deciding the issue in this case, the Board has considered the applicability of the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007). The Board has also considered the implementing regulations. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under 38 U.S.C.A. § 5103, the Secretary is required to provide certain notices when in receipt of a complete or substantially complete application. The purpose of the first notice is to advise the claimant of any information, or any medical or lay evidence not previously provided to the Secretary that is necessary to substantiate the claim. The Secretary is to advise the claimant of the information and evidence that is to be provided by the claimant and that which is to be provided by the Secretary. 38 U.S.C.A. § 5103(a) (West 2002). In addition, 38 C.F.R. § 3.159(b), details the procedures by which VA will carry out its duty to notify. The RO notified the veteran of the evidence/information required to substantiate his claim for service connection in letter dated in July 2001. He was informed of the elements to satisfy in order to establish service connection. He was advised to submit any evidence he had to show that he had a current disability and to identify sources of evidence/information that he wanted the RO to obtain on his behalf. In reviewing the requirements regarding notice found at 38 U.S.C.A. § 5103 and 38 C.F.R. § 3.159(b), the Board cannot find any absence of notice in this case. As reviewed above, the veteran has been provided notice regarding the type of evidence needed to substantiate his claim. In summary, the Board finds that no additional notice is required under the provisions of 38 U.S.C.A. § 5103 as enacted by the VCAA and 38 C.F.R. § 3.159(b). See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Additionally, while notice was not provided as to the criteria for rating disabilities of the heart or with respect to award of effective dates, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), in light of the denial of the claim herein, these matters are moot. Regarding VA's duty to assist under 38 U.S.C.A. § 5103A and 38 C.F.R § 3.159(c)(1)-(3), the Board notes that the RO has obtained the available service medical records, private treatment reports, and VA treatment reports. The veteran was afforded several VA examinations. The veteran has not alleged that there is any outstanding evidence that would support his contention that service connection should be awarded. The Board is not aware of any outstanding evidence. ORDER Entitlement to service connection for post-operative aortic valve replacement with subacute bacterial endocarditis and congestive heart failure is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs