Citation Nr: 0812765 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 06-23 273 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an increased evaluation in excess of 10 percent for paroxysmal supraventricular tachycardia. 2. Entitlement to service connection for chest pain, claimed as secondary to the service-connected paroxysmal supraventricular tachycardia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Associate Counsel INTRODUCTION The veteran served on active duty from June 1989 to June 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 and December 2006 rating decisions of the Wichita, Kansas, Department of Veterans Affairs (VA) Regional Office (RO). In the January 2006 rating decision, the RO continued the 10 percent evaluation for the veteran's service-connected paroxysmal supraventricular tachycardia and denied service connection for chest pain, claimed as secondary to the service-connected paroxysmal supraventricular tachycardia in the December 2006 rating decision. In February 2008, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. During the hearing, the veteran waived initial RO consideration of the new evidence submitted in conjunction with the hearing. 38 C.F.R. § 20.1304(c) (2007). The issue of an increased evaluation in excess of 10 percent for paroxysmal supraventricular tachycardia is addressed in the REMAND portion of the decision and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Competent evidence of a current chronic chest disability or pathology is not of record. CONCLUSION OF LAW Chest pain was not incurred in or aggravated by the veteran's military service, nor is it secondary to the service- connected paroxysmal supraventricular tachycardia disability. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Decision During the February 2008 hearing, the veteran testified that he experienced chest pain during his active service and after discharge. The veteran contends that his current chest pains are caused by his service-connected paroxysmal supraventricular tachycardia. 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. Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The United States Court of Appeals for Veterans Claims (Court) has held that in order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) current disability; (2) medical, 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 the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). 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 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 the Court's case law, lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997). In addition, if a condition 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). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a) (2007). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310 was amended to implement the holding in Allen v. Brown, 7 Vet. App. 439 (1995) for secondary service connection on the basis of the aggravation of a nonservice-connected disorder by service- connected disability. See 71 Fed. Reg. 52744 (2006). The amendment sets forth language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant 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 (1990). Review of the veteran's service medical records reflects multiple complaints of chest pain. In June 1989, the veteran was seen at emergency care and treatment for chest discomfort. Upon release, the veteran's condition had "improved," and he was diagnosed with paroxysmal supraventricular tachycardia (PSVT). Thereafter, in November 1992, the veteran was seen at sick call for complaints of tightness in the chest and returned to sick call in March 1995 for left lateral chest pains. The veteran was diagnosed with PSVT. Prior to discharge, clinical evaluation of the lungs and chest in October 1995 was normal, and the diagnosis of PSVT was noted. After discharge from service, post service treatment records reflect continuing complaints of chest pain, "chest tightness," and "chest pressure." In June 2005, the veteran was diagnosed with "acute chest pain." As alluded to previously, in order for service connection to be granted on a secondary basis, three elements must be present: a current disability, a service-connected disability, and a medical nexus. See 38 C.F.R. § 3.310(a) (2007). In this case, competent evidence of a current disability is not present. The veteran has not alleged a specific disability associated with his chest, but has, instead, stated that he has experienced pain and tightness in his chest since he was separated from service due to his service- connected heart disability. A symptom, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Without a pathology to which the symptoms of the veteran's chest pain can be attributed, there is no basis to grant service connection. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). The Board has no reason to doubt the veteran's report of ongoing chest pain; however, the competent evidence of record does not show his reports of pain are due to an underlying disease or injury as a result of any active military service or service-connected disability. Although the veteran has claimed that he has a disability that is manifested by chest pain, he does not have the requisite knowledge of medical principles that would permit him to render an opinion regarding matters involving medical diagnosis or medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, without competent evidence of a current disability related to, or underlying, the veteran's subjective complaints of chest pain, service connection cannot be granted. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992) ("absent proof of the existence of the disability being claimed, there can be no valid claim"). Thus, the evidence preponderates against the claim and there is no reasonable doubt to be resolved. The claim for service connection for chest pain, claimed as secondary to the service-connected paroxysmal supraventricular tachycardia must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). II. Duty to Notify & 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) (2007); 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. The Board finds that the VCAA notice requirements have been satisfied by the May 2006 letter sent to the veteran. In the letter, the veteran was informed of the evidence necessary to substantiate the claim for service connection caused by a service-connected condition. The letter informed the veteran that he must show evidence of the claimed physical condition and a relationship between the claimed condition and the service-connected condition. 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 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. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held 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. 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. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. In the present appeal, the May 2006 letter to the veteran included the type of evidence necessary to establish a disability rating and effective date for the disability on 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 obtained the veteran's service medical records, VA outpatient treatment records dated June 2005 to September 2007, and private medical records from September 2005 to January 2008. Although an examination or an opinion was not obtained in connection with the veteran's claim for service connection for chest pain, claimed as secondary to the service-connected paroxysmal supraventricular tachycardia, the Board finds that VA was not under an obligation to provide an examination, as such is not necessary to make a decision on the claim. Specifically, under the statute, an examination or opinion is necessary to make a decision on the claim when the record (1) contains competent evidence that the claimant has a current disability or persistent or recurrent symptoms of the disability; (2) contains evidence which indicates that the disability or symptoms may be associated with the claimant's active duty; and (3) does not contain sufficient medical evidence for VA to make a decision. See 38 U.S.C.A. § 5103A(d). Here, the evidence does not indicate that the veteran has a current chest condition which may be associated with his active service or service-connected disability. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003) (VA was not required to provide the veteran with a medical examination absent a showing by the veteran of a causal connection between the disability and service). In this case, the RO informed the veteran that he would need competent medical evidence of a current disability and of a relationship between his disability and service. The veteran has not provided such evidence or indicated where such evidence may be found. Furthermore, unlike Wells, the veteran did not submit evidence of a current disability pertaining to his chest pains, although he was advised to submit or identify such evidence by the RO. The Board has considered the case of Charles v. Principi, 16 Vet. App. 370 (2002) wherein the Court held that, under 38 U.S.C.A § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence, [including statements of the claimant]," and where, the claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge. Because there was evidence of record satisfying two of the requirements of the statute, i.e., competent evidence of a current disability and evidence indicating an association between the appellant's disability and his active service, but there was not of record, as relied upon in part by the Board in denying his claim, competent medical evidence addressing whether there is a nexus between his tinnitus and his active service, VA was to provide the claimant with a medical "nexus" examination. However, unlike Charles, in this case, there is no competent evidence of a current disability for the veteran's claimed condition. See also 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, nor is there notice delay or deficiency resulting in any prejudice to the veteran. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Entitlement to service connection for chest pain, claimed as secondary to the service-connected paroxysmal supraventricular tachycardia is denied. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claim for an increased rating for paroxysmal supraventricular tachycardia. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). During the course of this appeal, VA formally evaluated the veteran with respect to the nature, extent, and severity of his paroxysmal supraventricular tachycardia in January 2006. Electrocardiogram (ECG)/Holter/Echo testing during the January 2006 VA examination revealed the heart rate as 71 beats per minute (bpm), sinus rhythm, premature ventricular contraction (PVC), and an incomplete right bundle branch block. The examiner diagnosed the veteran with paroxysmal supraventricular tachycardia (PSVT) resolved with ablation. Since that time, the veteran testified during the February 2008 hearing that his heart condition has worsened, and more importantly, a September 2007 VA outpatient treatment record reports "several episodes of [supraventricular] [tachycardia]" (SVT) as demonstrated by recent Holter monitor testing. The Board notes that there were no episodes of SVT during the January 2006 VA examination. Given the disparity in the Holter monitor testing between the January 2006 VA examination and September 2007 VA outpatient testing results, the Board finds that a VA examination must be conducted because there is evidence that the condition has worsened since the last examination. In light of the foregoing, the Board must remand this matter to afford the veteran opportunity to undergo an additional VA examination. Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action required by the VCAA is completed. All notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, (2007), and Vazquez-Flores v. Peake, 22. Vet. App. 37 (2008), must be fully met. 2. Schedule the veteran for a VA cardiovascular examination to determine the severity of his service-connected heart disability. The claims folder must be provided to the examiner for review in conjunction with the examination. All studies or tests deemed necessary by the examiner should be performed. The examiner must specifically report whether the veteran has episodes of supraventricular tachycardia and, if so, the number of times these episodes occur per year. All opinions expressed must be supported by complete rationale. 3. Thereafter, the RO should readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the RO should issue a Supplemental Statement of the Case (SSOC), and the veteran and his representative should be afforded time in which to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs