Citation Nr: 0812449	
Decision Date: 04/15/08    Archive Date: 05/01/08

DOCKET NO.  06-23 391	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office 
Center in Wichita, Kansas


THE ISSUE

Entitlement to service connection for coronary artery 
disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jennifer Margulies, Associate Counsel






INTRODUCTION

The veteran served on active duty from April 1965 to October 
1968.  In addition, the veteran was a member of the Reserves, 
during which he had periods of active duty for training 
(ACDUTRA) and inactive duty for training (IADUCTRA), until he 
was discharged in July 2003. 

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a February 2005 rating decision of the 
Wichita, Kansas, Department of Veterans Affairs (VA), which 
denied the claim of entitlement to service connection for 
coronary artery disease.

The Board notes that the veteran filed a notice of 
disagreement in April 2007 regarding entitlement to service 
connection for hearing loss and tinnitus.  The veteran has 
not yet filed a substantive appeal in these matters.  
Therefore, the issues of hearing loss and tinnitus are not 
currently before the Board.  

The veteran submitted new evidence at his travel board 
hearing before the undersigned and waived his right to have 
this additional evidence initially considered by the RO.  
Accordingly, the Board will proceed with adjudication of his 
claim.


FINDING OF FACT

Competent evidence of a nexus between coronary artery disease 
and active military service, ACDUTRA and IADUCTRA is not of 
record. 








CONCLUSION OF LAW

Coronary artery disease was not incurred in or aggravated by 
active military service service, ACDUTRA and IADUCTRA, nor 
may in-service incurrence be presumed.  38 U.S.C.A. §§ 1101, 
1106, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 
2007); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Pertinent Law and Regulations

In order to establish service connection, the facts, as shown 
by evidence, must demonstrate that a particular disease or 
injury resulting in current disability was incurred during 
service or, if preexisting active service, was aggravated 
therein.  38 U.S.C.A. § 1110, 38 C.F.R. § 3.303(a).  

The chronicity provision of 38 C.F.R. § 3.303(b) is 
applicable where the evidence, regardless of its date, shows 
that the veteran had a chronic disability in service or 
during an applicable presumptive period and still has such 
disability.  Such evidence must be medical unless it relates 
to a disability as to which, under the United States Court of 
Appeals for Veterans Claims' (Court's) case law, lay 
observation is competent.  Savage v. Gober, 10 Vet. App. 488, 
498 (1997).  In addition, if a disability noted during 
service is not shown to be chronic, then generally a showing 
of continuity of symptomatology after service is required for 
service connection.  38 C.F.R. § 3.303(b) (2007).

Service connection may also be granted on a presumptive basis 
for certain chronic disabilities, including cardiovascular 
disease, when such are manifested to a compensable degree 
within the initial post-service year.  See 38 U.S.C.A. 
§§ 1101, 1110, 1112, 1113, 38 C.F.R. §§ 3.307, 3.309(a) 
(2007).  Service connection may also be granted for a disease 
first diagnosed after discharge when all of the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d) 
(2007).

Active military service includes active duty, any period of 
ACDUTRA during which the individual concerned was disabled or 
died from a disease or injury incurred or aggravated in line 
of duty, and any period of IACDUTRA during which the 
individual concerned was disabled or died from an injury 
incurred or aggravated in line of duty or from an acute 
myocardial infarction, a cardiac arrest, or a cerebrovascular 
accident which occurred during such training.  38 U.S.C.A. § 
1106; 38 C.F.R. § 3.6(a).  Service connection on a 
presumptive basis is not available where the only service 
performed is ACDUTRA or IACDUTRA.  Biggins v. Derwinski, 1 
Vet. App. 474, 476-78 (1991).

In order to prevail on the issue of service connection there 
must be (1) medical evidence of a current disability; (2) 
medical evidence or, in certain circumstances, lay evidence 
of in-service occurrence or aggravation of a disease or 
injury; and (3) 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).  

When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative balance, with the veteran prevailing in either 
event, or whether a preponderance of the evidence is against 
a claim, in which case, the claim is denied.  Gilbert v.  
Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C.A. § 5107(b) 
(West 2002). 

II.  Analysis

The veteran asserts that he is entitled to service connection 
as a result of several small heart attacks he experienced 
while in service.  His testimony, at a hearing before the 
undersigned, is that he was loading and unloading trailers 
and began to experience shortness of breath.  He stated that 
while jogging the next day, he experienced shortness of 
breath and was told by the doctors that he was having a 
series of small heart attacks.  The veteran has been 
diagnosed with coronary artery disease.  

A review of the veteran's service medical records does not 
show any signs of coronary artery disease or any other heart 
problems.  The veteran's separation records from October 1968 
show no sign of a heart problem and his heart was listed as 
normal.  

The first sign of the veteran having a heart problem is in 
March 2002.  Private medical records show that the veteran 
had presented for chest pain with exertion in March 2002 and 
was admitted with a myocardial infarction.  The examiner 
found that the veteran's heart had a regular rate and rhythm 
with no audible murmurs.  When the veteran appeared for his 
examination, he denied any prior episodes of chest pain, 
myocardial infarctions or cerebrovascular accident.  The 
veteran was diagnosed with symptomatic severe three-vessel 
coronary artery disease and received a cardiopulmonary 
bypass.  

In July 2004, medical records show that the veteran's 
coronary artery disease was clinically stable.  In February 
2005, the veteran received ischemic heart disease screening 
and the examiner found that the veteran was not experiencing 
any problems. 

A review of the medical records shows that no nexus can be 
established for the veteran's coronary artery disease and 
service.  Additionally, the presumptive regulations are not 
for application in this case, as the veteran did not present 
with coronary artery disease until after his initial post-
service year.  Indeed, the records first show signs of a 
heart problem in March 2002 over 30 years after service.  

The Board is cognizant of the veteran's assertions of having 
a series of strokes while on ACDUTRA.  However, the medical 
records state that on March 21, 2002 the veteran stated he 
had chest pain with exertion since Monday.  Monday was March 
18 and the veteran's confirmed reserve duty period was from 
March 15 thru March 17.  Therefore, the veteran's chest pain 
began after his ACDUTRA service.  Furthermore, as stated 
above, service connection on a presumptive basis is not 
available where the service performed is ACDUTRA or IACDUTRA.  
Also regarding ACDUTRA and IACDUTRA, the Courts have made a 
distinction between an injury and a disease incurred in 
service.  See VAOPGCPREC 86-90.  When medical evidence shows 
that the veteran's heart attack was the result of coronary 
artery disease, the heart attack is attributed to a disease 
that preexisted service rather than an injury.  In this case, 
the doctor attributed the veteran's myocardial infarction to 
coronary artery disease rather than an injury sustained while 
on ACDUTRA.  Furthermore, the veteran did not experience a 
traumatic external event that is independent of a disease 
process.  His shortness of breath due to exertion cannot be 
considered an injury.  The veteran's current disability is 
thus not related to his reservist duty. 

The Board also notes a letter from the veteran's jogging 
partner in the file.  She stated that at the time in question 
she and the veteran were exercise partners.  The Monday after 
his drill training, he could not jog and could barely walk.  
She stated that he was out of breath and very tired.  She 
stated that when she asked the veteran when his shortness of 
breath began, he replied that it began when he was climbing 
in and out of the trucks during training.  While the letter 
is competent to provide evidence regarding injury and 
symptomatology, neither the veteran nor his jogging partner 
is competent to provide evidence regarding the medical 
etiology of a disease.  See Espiritu v. Derwinski, 2 Vet. 
App. 492 (1992).  Only a medical professional can provide 
evidence of the medical etiology of a disease or disorder, 
and in this case, the record contains no competent medical 
evidence suggesting an etiological link between the veteran's 
coronary artery disease and active service, or his shortness 
of breath and lethargy while on ACDUTRA.

The Board notes that no medical examination has been 
conducted or medical opinion obtained with respect to the 
veteran's claim.  However, the Board finds that the evidence, 
which does not reflect competent evidence showing a nexus 
between service and the disorder at issue, warrants the 
conclusion that a remand for an examination and/or opinion is 
not necessary to decide the claim.  See 38 C.F.R. § 
3.159(c)(4).  The veteran's service medical records provide 
no basis to grant this claim and there is no medical evidence 
linking the veteran's coronary artery disease, over 30 years 
after his departure from service, and his service.  The Board 
finds no basis for a VA examination or medical opinion to be 
obtained.  Under McLendon v. Nicholson, 20 Vet. App. 79 
(2006), in disability compensation (service connection) 
claims, the VA must provide a VA medical examination when 
there is (1) competent evidence of a current disability or 
persistent or recurrent symptoms of a disability, and (2) 
evidence establishing that an event, injury, or disease 
occurred in service or establishing certain diseases 
manifesting during an applicable presumptive period for which 
the claimant qualifies, and (3) an indication that the 
disability or persistent or recurrent symptoms of a 
disability may be associated with the veteran's service or 
with another service-connected disability, but (4) 
insufficient competent medical evidence on file for the VA to 
make a decision on the claim.  Simply stated, the standards 
of McLendon are not met in this case.

The Board has considered the decision in Charles v. Principi, 
16 Vet. App. 370, 374-75 (2002).  However, the outcome of 
this claim hinges on what occurred, or more precisely what 
did not occur, during service and the absence of any 
competent post service evidence relating the current disorder 
to service.  In the absence of evidence of an in-service 
disease or injury, referral of this case to obtain an 
examination and/or an opinion as to the etiology of the 
veteran's disability would in essence place the examining 
physician in the role of a fact finder.  This is the Board's 
responsibility.  The holding in Charles was clearly 
predicated on the existence of evidence of both in-service 
incurrence and of a current diagnosis.  Simply stated, 
referral of this case for an examination or obtainment of a 
medical opinion under the circumstances here presented would 
not shed any additional light on the situation.  The duty to 
assist is not invoked, even under Charles, where "no 
reasonable possibility exists that such assistance would aid 
in substantiating the claim."  See also 38 U.S.C.A. § 
5103A(a)(2) (West 2002).

The Board has considered the applicability of "benefit of 
the doubt" doctrine; however, the record does not 
demonstrate an approximate balance of positive and negative 
evidence as to warrant the resolution of these matters on 
that basis.  
38 U.S.C.A. § 5107(b).  Here, a preponderance of the evidence 
weighs against the veteran's claim.  Thus, the claim for 
entitlement to service connection for coronary artery disease 
is denied.

III.  Duty to Notify and Duty to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) imposes 
obligations on VA in terms of its duty to notify and assist 
claimants.  When VA receives a complete or substantially 
complete application for benefits, it is required to notify 
the claimant and the representative, if any, of any 
information and 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) (2005);  Quartuccio v. Principi, 16 Vet. App. 183 
(2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 
(2004), the 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; and (3) that the claimant is expected to provide; 
and that (4) VA will request that the claimant provide any 
evidence in his possession that pertains to the claim.

Regarding the claim for service connection, the Board 
concludes that the veteran has been afforded appropriate 
notice under the VCAA.  The RO provided a VCAA notice letter 
to the veteran in November 2003, before the initial 
adjudication of the claim.  The letter notified the veteran 
of what information and evidence must be submitted to 
substantiate a claim for service connection.  

The VA indicated that in order to substantiate a claim for 
service connection, the evidence needs to show he has a 
current disability, a disease or injury in service, and 
evidence of a nexus between the post service disability and 
the disease or injury in service, which is usually shown by 
medical records or medical opinions. 

As to informing the veteran of which information and evidence 
he was to provide to VA and which information and evidence VA 
would attempt to obtain on his behalf, VA informed him it had 
a duty to obtain any records held by any federal agency.  It 
also informed him that on his behalf, VA would make 
reasonable efforts to obtain records that were not held by a 
federal agency, such as records from private doctors and 
hospitals.  The VCAA letter stated that he would need to give 
VA enough information about the records so that it could 
obtain them for him.  Finally, he was told to submit any 
evidence in his possession that pertained to the claim.

The Court in Dingess/Hartman holds that the VCAA notice 
requirements of 
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 
five elements of a service connection claim.  As previously 
defined by the courts, those five elements include: (1) 
veteran status; (2) existence of a disability; (3) a 
connection between the veteran's service and the disability; 
(4) degree of disability; and (5) effective date of the 
disability.  

Regarding Dingess notice, element (1) is not at issue.  
Regarding elements (2), and (3), (current existence of a 
disability and relationship of such disability to the 
appellant's service), as discussed above, the veteran was 
notified of what was needed to substantiate the claim for 
service connection in the November 2003 letter.  The veteran 
was provided with notice of elements (4) and (5) (degree of 
disability and effective date) in May 2006 and July 2007 
letters.  

Notwithstanding this belated Dingess notice on elements (4) 
and (5), the Board determines that the veteran is not 
prejudiced, because the veteran had a meaningful opportunity 
to participate effectively in the processing of his claim.  
As noted above, the veteran was provided with notice of what 
type of information and evidence was needed to substantiate 
the claim for service connection in November 2003, prior to 
the initial adjudication of the claim.  Further, as discussed 
in detail above, the preponderance of the evidence is against 
the claim for service connection, and therefore any questions 
as to the appropriate disability rating or effective date to 
be assigned are rendered moot.  For these reasons, it is not 
prejudicial to the veteran for the Board to proceed to 
finally decide this appeal.

VA must also make reasonable efforts to assist the claimant 
in obtaining evidence necessary to substantiate the claim for 
the benefit sought, unless no reasonable possibility exists 
that such assistance would aid in substantiating the claim. 
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2007).  In connection 
with the current appeal, VA has obtained the veteran's 
service medical records, private medical records and 
treatment records.  As discussed above, the Board determined 
that a VA examination was not necessary to fairly adjudicate 
this matter.  See McLendon v. Nicholson, 20 Vet. App. 79 
(2006).

For the foregoing reasons, the Board concludes that all 
reasonable efforts were made by VA to obtain evidence 
necessary to substantiate the claim.  The evidence of record 
provides sufficient information to adequately evaluate the 
claim.  Therefore, no further assistance to the veteran with 
the development of evidence is required.  38 U.S.C.A. 
§ 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson,
 444 F.3d 1328 (Fed. Cir. 2006).


ORDER

Entitlement to service connection for coronary artery disease 
is denied.



____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs