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