Citation Nr: 0814779 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 06-27 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for coronary artery disease with a history of myocardial infarction (heart attack). REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Rory E. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from November 1954 to October 1957. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. That decision denied the benefits sought on appeal The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Coronary artery disease with a history of myocardial infarction did not manifest in service or to a compensable degree within one year thereafter and has not been shown to be causally or etiologically related to military service. CONCLUSION OF LAW Coronary artery disease with a history of myocardial infarction was not incurred in active service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 112, 1131, 1133, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, in a letter dated December 2004, the RO provided the veteran with notice of the information or evidence needed to substantiate his claim, including that which he was to provide and that which VA would provide, prior to the initial decision on the claim in March 2005. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met in this case. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the veteran in the notice letter about the information and evidence that is necessary to substantiate his claim for service connection. Specifically, the December 2004 letter stated that the evidence must show that he had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. Additionally, the August 2006 statement of the case (SOC) and the November 2006 supplemental statement of the case (SSOC) notified the veteran of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claim. In addition, the RO notified the veteran in the notice letter about the information and evidence that VA will seek to provide. In particular, the December 2004 letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that VA would request all pertinent records held by Federal agencies, such as service medical records, military records, and VA medical records. The veteran was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the veteran about the information and evidence that he was expected to provide. Specifically, the December 2004 letter notified him that he must provide enough information about his records so that they could be requested from the agency or person that has them. It was also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the December 2004 letter stated that it was the veteran's responsibility to ensure that that VA received all requested records that are not in the possession of a Federal department or agency. Finally, the December 2004 letter specifically notified the claimant that he should submit any evidence or information in his possession that pertains to the claim. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473, noted above, which held that the 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 upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In the present appeal, the veteran was provided with notice of the type of evidence necessary to establish a disability rating or effective date for the disability on appeal. In this regard, the Board notes that a March 2006 letter informed him that a disability rating was assigned when a disability was determined to be service connected and that such a rating could be changed if there were changes in his condition. The letter also explained how disability ratings and effective dates were determined. In addition, the duty to assist the veteran has also been satisfied in this case. The veteran's available service clinical records, VA medical records and private medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the veteran's claim. The veteran was also afforded VA examinations in March 2005 and in June 2006 in connection with this claim. The Board does observe that the veteran's service medical records are not associated with the claims file. When a claimant's medical records are lost or destroyed, the VA has a "heightened" duty to assist in the development of the claim. Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005). Thus, in accordance with the law and implementing regulations, the RO continued its efforts to obtain all relevant medical records until it was reasonably certain that such records did not exist or that further efforts to obtain those records would be futile. See 38 C.F.R. § 3.159(c). In this regard, the December 2004 letter specifically requested that the veteran complete, sign and return NA Form 13055, Request for Information Needed to Reconstruct Medical Data, in as much detail as possible. The December 2004 letter informed the veteran that there was a strong possibility that his service medical records were destroyed in a fire in July 1973 at the records facility in Saint Louis, Missouri, and thus the NA Form 13055 would greatly assist VA in processing his claim. Accordingly, the December 2004 letter also asked the veteran to submit any service medical records that he had in his possession. The RO also requested in November 2004 that the National Personnel Records Center (NPRC) furnish the veteran's complete medical and dental service medical records. However, a response was received in January 2005 indicating the veteran's records were in fact destroyed by the fire at the NPRC in 1973 and that there were no service medical records available. The January 2005 response also indicated that if the veteran was treated during service and was able to provide additional information needed to research sick and morning reports, an additional request could be submitted. Also in January 2005, the veteran submitted a written statement indicating that he did not have any service medical records. Accordingly, a Formal Finding of Service Records Unavailability was issued in February 2005, stating that all procedures to obtain the veteran's service medical records had been correctly followed and that all efforts to obtain his service medial records had been exhausted. Thus, further attempts by VA to obtain the records would be futile. In December 2004, VA also requested from the NPRC clinical records for a heart attack from March 1956 to May 1956 at the U.S. Army Hospital in Orleans, France, where the veteran indicated he had been treated on his October 2004 VA Form 21- 526. A response from the NPRC was received in February 2005 indicating that the search could not be completed at that time because the name of the hospital where the veteran was treated was required. In April and May 2005, the veteran and his representative were able to provide this information. In an April 2005 statement by the veteran's representative, the hospital was identified as being the 34th General Hospital, La Chapelle, near Orleans, France. Thus, that same month, VA requested treatment records from the NPRC with the information provided. In July 2005, a further request was submitted to the NPRC, expanding the search from "heart attack" to "heart condition, nervous condition, or other," and expanded the date of the search from March 1956 through May 1956 to March 1956 through June 1956. The veteran was contacted by VA in September 2005, and he indicated that he did not have any additional records to provide in relation to this incident of hospitalization. That same month, VA received a response to their July 2005 request for inofmation, indicating that the veteran's clinical records were part of the records which were destroyed by the fire, and it was suggested that VA try an alternate search. A further request was submitted in September 2005 requesting a search of copies of Surgeon General Office (SGO) records, sick reports and morning reports for the 34th U.S. Army Hospital La Chapelle, France from March 1956 to June 1956, for remarks pertaining to a heart condition or nervous condition. A response to this request was received in March 2006, indicating negative results. However, the veteran also personally contacted the NPRC. He received a response in July 2006 which located morning reports containing several references to his hospitalization in March and April of 1956. As a result of this response, in September 2006, VA resubmitted its earlier request for this information. A response was received later that same month indicating that all available records, which included the aforementioned morning reports, had been mailed to VA. Accordingly, in February 2007, VA issued a Formal Finding on the Unavailability of Clinical Records, which summarized these efforts and formally notified the veteran that his complete clinical records were unavailable. Considering the aforementioned, the Board concludes that the RO's actions constitute a "reasonably exhaustive search" of all available options. See Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992). The RO has satisfied the duty to assist the veteran with regard to obtaining his service medical records through its actions. See also Layno v. Brown, 6 Vet. App. 465, 469 (1994); Garlejo v. Derwinski, 2 Vet. App. 619, 620 (1992). The veteran and his representative have not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. In fact, the January 2005 and September 2005 reports of contact show that the veteran indicated that he had no other information or evidence to give VA to substantiate his claim. Thus, the Board finds that there is no indication that there is additional available evidence to substantiate the veteran's claim that has not been obtained and associated with the claims folder. VA has further assisted the veteran and his representative throughout the course of this appeal by providing them with a SOC and SSOC, which informed them of the laws and regulations relevant to the veteran's claim. For these reasons, the Board concludes that VA has fulfilled the duty to assist the veteran in this case. LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for arteriosclerosis, or heart disease, may also be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for coronary artery disease. As previously discussed, the veteran's service medical records are not available for review. However, as will be more fully discussed below, the medical evidence which is of record indicates that although the veteran was hospitalized for an extended period in March and April 1956, it appears that he suffered from a viral infection and dehydration rather than a heart attack during service. The available morning reports for this period do not indicate that the veteran had a heart attack. Furthermore, both the March 2005 and June 2006 VA examiners opined that the symptoms the veteran described experiencing in March 1956 were not consistent with a heart attack, but rather with a viral illness. Therefore, the medical evidence of record indicates that the veteran did not experience a heart attack during service. Moreover, the medical evidence of record does not show that the veteran sought treatment for a heart condition immediately following his period of service or for many years thereafter. The veteran did not submit or identify any evidence or treatment for coronary artery disease until over thirty years after separation from service. In Savage v. Gober, 10 Vet. App. 488 (1997), it was noted that while the concept of continuity of symptomatology focuses on continuity of symptoms, not treatment, in a merits context, the lack of evidence of treatment may bear upon the credibility of the evidence of continuity. The record here discloses a span of approximately 35 years without any clinical evidence to support any assertion of a continuity of symptomatology. The fact that the contemporaneous records do not provide subjective or objective evidence that supports any recent contention that the veteran experienced continuous symptomatology since service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board decision in a case involving an injury in service, normal medical findings at the time of separation, and the absence of any medical records of a diagnosis or treatment for many years after service, where the Board found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Savage, 10 Vet. App. at 497-98 (holding that, notwithstanding a showing of post-service continuity of symptomatology, medical expertise was required to relate present disability etiologically to post-service symptoms). Therefore, the Board finds that the veteran's coronary artery disease did not manifest in service or within one year thereafter. With regard to the decades-long evidentiary gap in this case between active service and the earliest complaints of heart disease, the Board notes that this absence of evidence constitutes negative evidence tending to disprove the claim that the veteran had an injury or disease in service which resulted in chronic disability or persistent symptoms thereafter. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact); see also 38 C.F.R. § 3.102 (noting that reasonable doubt exists because of an approximate balance of positive and "negative" evidence). Thus, the lack of any objective evidence of continuing complaints, symptoms, or findings for many decades between the period of active duty and the first complaints or symptoms of coronary artery disease is itself evidence which tends to show that coronary artery disease did not have its onset in service or for many years thereafter. A prolonged period without medical complaint can be considered, along with other factors concerning a veteran's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In addition to the lack of evidence establishing that coronary artery disease manifested during service or for many years thereafter, the medical evidence does not show the veteran to currently have such a disorder that is related to his military service. The March 2005 VA examiner stated that it is unlikely that the veteran's recent coronary artery disease was related to his military service. The March 2005 VA examiner based this opinion on the fact that he did not believe that the veteran had a heart attack while in service. The March 2005 VA examiner acknowledged that no records were available, but that based on the veteran's own history, the veteran experienced palpitations, which are not equivalent to a heart attack. In addition, the March 2005 VA examiner added that it was highly unlikely that a young man would have a heart attack at the age of 21 and not have any symptoms afterwards without any medical therapy for approximately forty years, nor did the veteran have a family history of heart disease at a young age. Thus, the March 2005 VA examiner concluded that what the veteran experienced during service was most likely a viral infection with subsequent dehydration from which he had a syncopal event, which is not in any way related to any current coronary artery disease. The Board also observes the veteran's contention in his April 2005 notice of disagreement that the March 2005 VA examiner's opinion was inadequate because the examiner spent only ten minutes with the veteran, the examiner based his opinion on only a few questions after taking the veteran's pulse, and that when the veteran started to explain his situation, the examiner stopped him and told him that this was unimportant. The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). See also Knightly v. Brown, 6 Vet. App. 200 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998) (medical opinions must be supported by clinical findings in the record and conclusions of medical professionals which are not accompanied by a factual predicate in the record are not probative medical opinions). The March 2005 VA examiner based his opinion on a review of the veteran's claims file, a brief history of events as reported by the veteran, and the heart examination conducted. The March 2005 VA examiner reasoned that the veteran did not have a heart attack in service based upon the veteran's own history of having an irregular heartbeat for most of his life, the unliklihood of a young man having a heart attack at the age of 21 without any symptoms or treatment for nearly forty years thereafter, and the lack of a history of heart disease at a young age in the veteran's family. In reaching this conclusion, the March 2005 VA examiner noted the veteran's contentions that he had the onset of flu-like symptoms and associated lightheadedness and sweating in service. However, even when taking these factors into consideration, the March 2005 VA examiner still concluded that the veteran's coronary artery disease was not due to an injury or event during military service. Therefore, the Board finds that the March 2005 VA examiner reviewed the claims file and rendered an opinion that is supported by the evidence of record. Accordingly, the Board finds the March 2005 opinion to be adequate. Nonetheless, VA afforded the veteran an additional VA examination in June 2006 in response to the veteran's contention that the March 2005 VA examination was inadequate. The June 2006 VA examiner was specifically instructed to examine the veteran, take the time to review the evidence of record, and elicit additional testimony from the veteran as to the nature of the symptoms he experienced during service. After reviewing the evidence, the June 2006 VA examiner was specifically instructed to use his best medical judgment to ascertain whether it is at least as likely as not that the veteran's current coronary artery disease was either incurred during or caused by the treatment symptoms the veteran described experiencing during service. The June 2006 VA examiner reviewed the veteran's claims file, which included the March 2005 VA examiner's report. The June 2006 VA examiner noted that the veteran was concerned about the lack of history taken during his previous VA exam; however, the June 2006 VA examiner also noted that the veteran constantly drifted from his history and could not continuously focus on the information which was relevant to his 1956 hospitalization. The June 2006 VA examiner ordered an EKG and performed a physical evaluation of the veteran. After reviewing the available medical records, the veteran's claim, his own history, the physical examination, and the EKG report, the June 2006 VA examiner concluded that the veteran did not have a heart attack or a myocardial infarction during service. The June 2006 VA examiner stated that his rationale for this opinion was based on the fact that the veteran's symptoms at the time of his 1956 hospitalization did not correspond with the symptoms of a typical myocardial infarction; the veteran was young and did not have a family history of premature heart disease, and after the 1956 hospitalization the veteran did not have any further symptoms or treatment of heart disease for many years. Therefore, after a thorough review of the record, the June 2006 VA examiner concurred with the opinion of the March 2005 VA examiner. The June 2006 VA examiner stated that in his professional opinion, the veteran most likely suffered from a viral illness associated with malaise and dehydration. In conclusion, the June 2006 VA examiner stated "in best medical judgment with a very high degree of medical certainty, it is my opinion that it is not likely at all, that [the] veteran suffered from an MI or heart attack in the service and it's not at all likely that [the] veteran's coronary artery disease was in any way caused by or aggravated by [his] military service or the symptoms [and] treatment he received during his military service." Therefore, the Board also finds that the June 2006 VA examiner reviewed the claims file and rendered an opinion that is supported by the evidence of record. Accordingly, the Board also finds the June 2006 opinion to be adequate. The Board does observe several private medical records dated from 1991 to 2000 in the veteran's claims file. These records detail treatment for angina and a myocardial infarction in 1991 and 1999 respectively, as well as follow- up treatment for these conditions. However, these medical records do not contain any evidence linking the veteran's current coronary artery disease to his military service. Although the veteran may sincerely believe that his current coronary artery disease is related to an injury or event in service, the veteran, as a lay person, is not competent to testify that his coronary artery disease was caused by the symptoms he suffered in March and April of 1956 while in service. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). There is no indication in the record that the veteran is a physician or other health care professional. Therefore, as a layperson, he is not competent to provide evidence that requires medical knowledge because he lacks the requisite professional medical training, certification and expertise to present opinions regarding diagnosis and etiology. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, any statements by the veteran regarding etiology do not constitute competent medical evidence on which the Board can make a service connection determination. The Board also observes a lay statement by the veteran's wife submitted in August 2007. This statement describes symptoms the veteran has experienced such as sleepless nights, nightmares, nervousness, and a necessary prescription for valium for many years. Similarly, although the veteran's wife may sincerely believe that the veteran's current coronary artery disease is related to an injury or event in service, the veteran's wife, as a lay person, is not competent to testify that his coronary artery disease was caused by the symptoms he suffered in March and April of 1956 while in service. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, any statements by the veteran's wife implying etiology do not constitute competent medical evidence on which the Board can make a service connection determination. In sum, after considering the credibility and probative value of the evidence in this case, the Board finds the evidence against the veteran's claim for service connection for coronary artery disease to be more persuasive than the evidence in favor of the claim. Although the veteran currently has coronary artery disease and has indicated that the condition is due to a March and April 1956 illness during service, the veteran's first complaints of coronary artery disease were not until 1991, over 30 years after his separation from service. See Savage v. Gober, 10 Vet. App. 488 (1997); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Furthermore, after a thorough review of the claims file and two adequate medical examinations, the March 2005 and June 2006 VA examiners found that the veteran's current coronary artery disease was not likely the result of an injury or event during military service. Therefore, the Board finds that the preponderance of the evidence is against the veteran's claim for service connection for coronary artery disease. Because the preponderance of the evidence is against the veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for coronary artery disease is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supplement 2007); 38 C.F.R. § § 3.102, 3.303 (2007). ORDER Entitlement to service connection for coronary artery disease with a history of myocardial infarction is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs