Citation Nr: 0812522 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-20 694 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for mitral valve prolapse. 2. Entitlement to service connection for arthritis of the left great toe. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from June 1978 to August 2001. The appeal comes before the Board of Veterans' Appeals (Board) from July 2002 and July 2003 rating decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing conducted at the RO, a transcript of which is contained in the claims folder. The Board in May 2006 issued a decision, in pertinent part, remanding the above-styled claims to the RO for further development. The claims now return for further Board review. Also then remanded was a claim for service connection for thoracic scoliosis, which the RO subsequently granted in a July 2007 rating action. There is no longer a case in controversy for review by the Board as to that issue. FINDINGS OF FACT 1. Mitral valve prolapse did not develop in service and is not otherwise related to service; mitral valve prolapse was not medically shown within the first post-service year. 2. The veteran does not have arthritis of the left great toe; left great toe arthritis was not medically shown within the first post-service year. CONCLUSIONS OF LAW 1. Mitral valve prolapse was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2007). 2. Left great toe arthritis was not incurred in or aggravated by service, and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 notice from 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; (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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (herein, the RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent complete VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In December 2001 and June 2003, prior to the appealed RO rating actions, the veteran was afforded VCAA notice letters directed at his claims for service connection including for arthritis of the left great toe and mitral valve prolapse (though only the heart disorder claim was specifically addressed in the June 2003 letter). In June 2006, following Board remand, the veteran was afforded a further VCAA notice letter addressing both appealed claims. This June 2006 letter informed the veteran of VA's duty to assist him in substantiating his claims under the VCAA, and the effect of this duty upon his claims, satisfying all four notice requirements of the VCAA, and addressing the evidence required to support both these claims for service connection herein adjudicated. The June 2006 letter addressed VCAA notice and development assistance requirements. It also informed what evidence VA would seek to provide and what evidence the veteran was expected to provide. Also by this letter, the veteran was requested to submit pertinent clinical evidence in his possession, in furtherance of his claims. The veteran's two claims on appeal were thereafter readjudicated by the RO as documented in a July 2007 SSOC. Thus, to whatever extent the prior VCAA letters may have been deficient in their notice requirements, these deficiencies were remedied by the June 2006 letter and subsequent SSOC in July 2007. Mayfield; Prickett. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim, and to provide the claimant with notice of what information and evidence not previously provided, if any, would assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection, and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, although the December 2001 and June 2003 VCAA notice letters did not address the downstream issues of initial rating and effective date as pertinent to the appellant's claims, these were addressed by the June 2006 VCAA letter, and that development letter was followed by the July 2007 SSOC. In any event, any such deficiencies are harmless because the appealed claims for service connection for left great toe arthritis and mitral valve prolapse are herein denied. VA's duty to assist the veteran in the development of his claims includes assisting him in the procurement of service medical records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The above-noted VCAA notice letters in December 2001, June 2003, and June 2006, requested that the veteran advise of any VA and/or private medical sources of evidence pertinent to his claims, and to provide necessary authorization to obtain those records. They also requested evidence and information about treatment after service, in support of the claims. VA and service medical records (SMRs) were obtained. The veteran submitted private medical records, inclusive of some records pertinent to his claims. However, he did not provide all requested authorizations to obtain additional private medical records, notwithstanding requests for such authorizations, and additional private records could not be obtained. Specifically, the veteran was informed by a June 2006 letter that his authorization was required to obtain private medical records, and he was requested to inform of private records and provided such authorization to obtain those records. A prior authorization to obtain those records had expired. However, the veteran failed to reply to that request, and hence no additional private records could be obtained. The veteran informed at his June 2006 Travel Board hearing that his private physician, through Tricare, had evidence of his left great toe arthritis. However, again, the RO in June 2006 requested of the veteran's authorization to obtain private records, but he provided none. The veteran was informed of this development situation in the July 2007 SSOC, but he still did not submit appropriate authorization. The Board notes in this regard the duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, he cannot passively wait for it in circumstances where he may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See Olson v. Principi, 3 Vet. App. 480, 483 (1992). Furthermore, while VA does have a duty to assist a veteran in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the veteran (appellant) to keep VA apprised of his whereabouts. If he does not do so, there is no burden on the VA to "turn up heaven and earth" to find him. Hyson v. Brown, 5 Vet. App. 262 (1993). Accordingly, the Board finds that the duty to assist the veteran was here satisfactorily completed. The Board in a May 2006 remand requested that records be obtained from the Atlanta VA Medical Center's Cardiac Unit, and that other VA records be obtained from January 2006 to the present. The Board asked that the veteran provide information and authorization to obtain private treatment records, and that VA examination be conducted to address the veteran's claimed mitral valve prolapse. The requested VA treatment records were obtained and associated with the claims folder. As noted above, the RO in the June 2006 VCAA letter requested information and authorization for private treatment records, with no reply forthcoming. A VA cardiology examination was conducted in October 2006 adequately addressing the requested remand development, and providing sufficient competent medical evidence to decide the claim for service connection for mitral valve prolapse. 38 C.F.R. § 3.159(c)(4) (2007). Accordingly, the Board finds that necessary development pursuant to the Board's May 2006 remand has been complied with, and is at an end. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The veteran was afforded a June 2001 official general examination addressing multiple claimed disabilities including that for left great toe arthritis, and the Board finds that this examination report, taken together with other evidence of record, provides sufficient competent medical evidence to decide the left great toe arthritis claim. 38 C.F.R. § 3.159(c)(4). The veteran has advised of no additional private medical sources of pertinent treatment records for which he has provided authorization to obtain those records. Hence, in that regard, the VCAA development assistance duty has been fulfilled. All records received were associated with the claims folder, and the veteran was duly informed, including by the appealed rating actions, SOC, and SSOCs, of records obtained in furtherance of his claims, and, including by implication, of records not obtained. The veteran was adequately informed of the importance of obtaining all relevant records. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was afforded appropriate opportunity to address the claims, and did so by written submissions as well as by testimony before the undersigned Veterans Law Judge at the Travel Board hearing in January 2006. There is no indication that he expressed a further desire to address his claims which has not been fulfilled. The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. In summary, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Claims for Service Connection Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993). Certain diseases, such cardiovascular-renal diseases and arthritis, may be subject to service connection based on presumed incurrence in service if manifested to a compensable degree within one year subsequent to service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson 492 F. 3d 1372 (Fed. Cir. 2007); See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). A. Mitral Valve Prolapse The veteran contends that he has mitral valve prolapse which developed in service or is otherwise causally related to service. As a basis for this contention he notes that he has had some chest pain from service to the present. The veteran submitted private medical records affording some support for his claim. A private echocardiogram conducted in March 2003 found mitral valve prolapse with trace mitral regurgitation noted by Doppler. The veteran has also submitted a June 2004 private medical opinion addressing the condition. That physician noted the March 2003 echocardiogram, but also noted that a stress test and spirometry were normal. The physician noted that the echocardiogram was consistent with mitral valve prolapse, but observed that it was difficult to determine whether the mitral valve prolapse was congenital in origin or may have been acquired in service, because an examination was not conducted in service to ascertain whether the condition was then present. Ultimately, the private physician opined merely that it was possible that the mitral valve prolapse could have been exacerbated by the veteran's military service, with a resulting chronic increase in that disability. Upon Board remand of the claim, VA cardiac testing was performed. An October 2005 VA echocardiogram found no evidence of mitral valve prolapse, though a trace mitral regurgitation was found. Upon VA cardiology examination in October 2006 to address the veteran's claimed mitral regurgitation, the VA examiner reviewed the claims folder and duly noted the recent echocardiogram findings in October 2005. However, the VA examiner failed to mention in the examination report the past private echocardiogram in March 2003 finding mitral valve prolapse, or the private medical opinion in June 2004. Nonetheless, the VA examiner did note that the recent October 2005 echocardiogram findings were consistent with his own examination of the veteran during which he detected no mitral valve prolapse. He also noted that an exercise stress test with myocardial perfusion imaging showed good exercise tolerance without evidence of inducible ischemia, and that the veteran continued to deny ischemia. Based on noted findings, the VA examiner concluded that the veteran did not have mitral valve prolapse. Thus, the medical record presents a conflict of medical opinions as to the presence of mitral valve prolapse, and because the VA examiner in October 2006 failed to note or address the private medical finding of mitral valve prolapse, the Board cannot ultimately dismiss that private finding to conclude that the weight of the evidence is against the presence of mitral valve prolapse. For the veteran's claim to be sustained, however, requires more than the presence of current disability. It also requires an evidentiary showing, to a level of at least relative equipoise, as to the question of a mitral valve prolapse having been present in service or causally linked to service. In this case the weight of the evidence is against such an etiology related to service. The private physician's opinion of etiology as related to service is too much in the realm of speculation or possibility to support the claim. 38 C.F.R. § 3.102; see Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Obert v. Brown, 5 Vet. App. 30, 33 (1993) (physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis deemed speculative). Regarding the veteran's chest pain, both treatment records and the veteran's VA examination in October 2006 note that the veteran's complained of chest pain is unrelated to exertion. VA treating and examining physicians assessed that the veteran's chest pain is not cardiovascular in origin. The question of the nature of the veteran's chest pain is a medical one not within the ambit of lay knowledge, and hence the veteran's opinion as to whether it relates to a cardiac condition is ultimately not probative. Espiritu; cf. Jandreau. Contrary medical evidence is not of record, and hence the Board concludes by the weight of the evidence that the veteran's reported chest pain is not related to any cardiovascular disorder, to include not related to any mitral valve prolapse. While the veteran may have more generally contended that current mitral valve prolapse is in some manner causally related to service, this again seeks to speak to a question of etiology requiring medical expertise, because there is no record in service or in the years proximate to service medically establishing the presence of mitral valve prolapse at that time, and the very presence of mitral valve prolapse is not subject to lay knowledge. Espiritu; cf. Jandreau. Absent cognizable evidence favoring onset of mitral valve prolapse in service or otherwise causally linking mitral valve prolapse to service, the preponderance of the evidence is against a causal link between service and mitral valve prolapse. With the preponderance of the evidence against such a cognizable link, and thus in the absence of that crucial element required to sustain a direct claim for service connection, the preponderance of the evidence is against the claim for service connection for mitral valve prolapse on a direct basis, notwithstanding the unresolved medical question as to whether the veteran has mitral valve prolapse currently. 38 C.F.R. § 3.303. There is also no cognizable evidence to support the presence of mitral valve prolapse to a disabling degree within the first post-service year, and hence the claim cannot be sustained on a first-year-post-service presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Arthritis of the Left Great Toe The veteran was afforded an official examination in June 2001 to address multiple claimed disabilities. The examining physician then noted that the veteran claimed he had been diagnosed with arthritis of the left great toe in 2000, and that he complained of pain in the left great toe with walking, which was uncomfortable and flared approximately two to three times per year. The veteran contended that the condition limited his ability to engage in prolonged walking, though he denied ever having received treatment or having surgery for the condition. At that examination, neither flat feet nor calluses were observed. X-rays of the left foot and left toe were normal. The examiner assessed that there was no pathology of the left great toe. March 2003 X-rays of the left foot also showed no bony or soft tissue abnormalities. At his January 2006 Travel Board hearing before the undersigned, the veteran testified that his left great toe condition was in the area of the joint at the ball of the toe, or the interphalangeal joint. The veteran testified that upon separating from service he checked a box indicating that he had a left great toe disorder, though he was not then examined for it. He added that through Tri-Care a private physician had examined him, mentioned that the toe condition might be a bone spur, and prescribed an anti-inflammatory or pain medication, though the veteran could not recall the type of medication. The veteran further testified that he was most recently administered pain medication from a Dr. Henry, with the veteran suggesting that the medication was given both for a condition of the left rib and for the left great toe. As the RO noted in a July 2007 SSOC, the veteran reported receiving treatment by a private physician through Tri-Care, with that physician reportedly providing evidence of arthritis and spur formation of the left great toe. However, patient authorization is required to obtain those private records, and the RO accordingly sent the veteran a letter in June 2006 requesting that he provide authorization to release private records to VA, in furtherance of his claim. The veteran failed to respond to that request or otherwise to provide the requisite authorization. The Board accordingly cannot rely on the veteran's report of such medical evidence, in the absence of supporting medical evidence. The Court, in addressing such evidence, has held that a layperson's account, filtered through a layperson's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence required to support a claim. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). More recent case law ultimately does not change that calculus where, as here, the veteran was in a position to afford access to those records but failed to do so. Espiritu; cf. Jandreau. The Board notes in this regard that "[T]he duty to assist is not always a one-way street. If a veteran (appellant) wishes help, he cannot passively wait for it in those circumstances [where his input is crucial for obtaining that assistance]." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, in light of the June 2001 VA examination finding of an absence of any pathology of the left foot or left great toe, and X-rays including at that time and in March 2003 supporting those conclusions, the Board finds that this medical evidence outweighs the veteran's lay contentions of disability of the left foot. In the absence of medical evidence supporting the claim, the evidence as a whole accordingly preponderates against the claim for service connection for service connection for arthritis of the left great toe on a direct basis. 38 C.F.R. § 3.303. In the absence of medical evidence of arthritis of the left great toe within the first post-service year to support the claim, service connection cannot be afforded on a first-year- post-service presumptive basis. 38 C.F.R. §§ 3.307, 3.309. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Service connection for mitral valve prolapse is denied. Service connection for arthritis of the left great toe is denied. _________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs