Citation Nr: 1007379 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 05-03 579A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a heart disorder, and, if so, whether the claim should be granted. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. L. Anderson, Associate Counsel INTRODUCTION The Veteran had active service from June 1957 to August 1977. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an August 2004 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. An unappealed February 1978 rating decision denied service connection for a heart disorder. 2. The evidence associated with the claims file subsequent to the February 1978 rating decision was not previously submitted for consideration, relates to an unestablished fact necessary to establish the claim, and raises a reasonable possibility of substantiating the claim, thus permitting reopening of the claim. 3. The competent and probative evidence preponderates against a finding that the Veteran's coronary artery disease is due to any incident or event in active military service; and against a finding that any organic heart disease was manifested to a compensable degree within one year after his separation from active service. 4. The competent and probative evidence is in approximate balance as to whether the Veteran's tachycardia is related to active military service. CONCLUSIONS OF LAW 1. The February 1978 rating decision, which denied service connection for a heart condition, is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. § 20.302 (2009). 2. The evidence received subsequent to the February 1978 rating decision is new and material, and the claim for service connection for a heart condition is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2009); 38 C.F.R. § 3.156 (2009). 3. Coronary artery disease was not incurred in or aggravated by service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103A, 5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). 4. Giving the benefit of the doubt to the Veteran, tachycardia was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2009). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the decision of the U.S. Court of Veterans Appeals (Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice. In April 2004, VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. The Veteran was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. A June 2004 letter stated the reason for the previous denial of the Veteran's claim for service connection, informed him that he would need to submit new and material evidence in order to reopen his claim, and advised him as to what new and material evidence should show. A February 2008 letter described how VA determines disability ratings and effective dates. The Board acknowledges that the content of the April and June 2004 letters did not fully comply with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), as later amended, regarding VA's duty to notify and assist. However, the Board finds that any error in notice is non-prejudicial. Although the Veteran did not receive Dingess notice until after initial adjudication of the claim (because the initial rating decision occurred prior the Court's ruling in Dingess), it is clear that he was provided with the opportunity to participate in the processing of his claim so as to render any defect in notice non-prejudicial. For example, the August 2004 rating decision, January 2005 SOC, and September 2008 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional 60- day periods to submit more evidence. Moreover, the claim was readjudicated in the September 2008 SSOC after proper notice was sent. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. With regard to VA's duty to assist, VA obtained the Veteran's service treatment records (STRs) and private treatment records, and the Veteran was afforded a VA examination in March 2008. Additionally, a VA cardiologist reviewed the Veteran's claims file for the purpose of rendering a nexus opinion. Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. New and Material Evidence to Reopen the Claim In September 1977, the Veteran raised a claim of entitlement to service connection for an abnormal electrocardiogram (EKG) reading obtained during his active service in the Air Force. The claim was denied in a February 1978 rating decision. The Veteran did not file a timely appeal. Consequently, the February 1978 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. In February 2004, the Veteran filed a request to reopen his claim for service connection for a heart disorder, which he claimed was related to the abnormal EKG reading in service. The claim was denied in an August 2004 rating decision, which is the subject of the instant appeal. Based on the procedural history outlined above, the preliminary issue for consideration with respect to the Veteran's claim is whether new and material evidence has been received to reopen the claim. It appears that the RO addressed the heart disorder claim on the merits in its August 2004 rating decision. However, the question of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider the underlying claim on its merits. Barnett v. Brown, 8 Vet. App. 1, 4, (1995), aff'd, Barnett v. Brown, 83 F.3d 130 (Fed. Cir. 1996). Therefore, regardless of the manner in which the RO characterized the issue, the initial question before the Board is whether new and material evidence has been presented. Effective from August 29, 2001, "new" evidence is defined as evidence not previously submitted to agency decision- makers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2009). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). However, lay assertions of medical causation cannot serve as the predicate to reopen a claim under section 5108. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). In order for evidence to be sufficient to reopen a previously disallowed claim, it must be both new and material. If the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. See Smith v. West, 12 Vet. App. 312, 314 (1999). If it is determined that new and material evidence has been submitted, the claim must be reopened. The VA may then proceed to evaluate the merits of the claim on the basis of all evidence of record, but only after ensuring that the duty to assist the Veteran in developing the facts necessary for his claim has been satisfied. See Elkins v. West, 12 Vet. App. 209 (1999), but see 38 U.S.C.A. § 5103A (eliminating the previous requirement of a well-grounded claim). The evidence of record at the time of the last final, February 1978, rating decision denying the Veteran's claim of entitlement to service connection for a heart disorder consisted of his service treatment records (STRs). The STRs show that a intermittent left bundle branch block (LBBB) pattern was detected during active service. However, a report from the Medical Evaluation Board noted that the Veteran was asymptomatic from a cardiac standpoint, and that it was only by routine EKG that the heart condition was found at all. Moreover, Air Force physicians felt that the LBBB did not represent organic heart disease. Based on the above evidence, the claim was denied. Specifically, the RO in February 1978 determined that there was no evidence of organic heart disease, and thus, the LBBB defect discovered during service was considered to be a constitutional or developmental abnormality. Evidence added to the record since the time of the last final denial in February 1978 includes treatment records from Seton Medical Center (Seton), a March 2008 VA examination report, and an October 2009 report from a VA cardiologist, Dr. S.P. The Seton records show a diagnosis of coronary artery disease in 2003, along with the persistent presence of the LBBB. At the March 2008 VA examination, the examiner expressed concern over the Veteran's current tachycardia. Dr. S.P. stated that the tachycardia observed in March 2008 was at least as likely as not related to the bypass tract tachycardia diagnosed in the spring of 1977 while the Veteran was in active service. The evidence added to the record since the previous February 1978 denial constitutes new and material evidence. It addresses the existence of a disability and of a nexus between the disability and active service, which is an unestablished fact necessary to substantiate the claim. Further, it is not redundant, as there have been no previous records containing a definitive diagnosis of a heart condition that was related to active service. Finally, it does raise a reasonable possibility of substantiating the heart condition claim. Therefore, the Board finds that the criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claim is reopened. Because the RO considered the merits of the underlying service connection claim in the August 2004 rating decision that is part of the pending appeal, the Board may proceed with appellate review at this time without prejudicing the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 393-94 (1993). III. Service Connection A. Applicable Law 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. § 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303(a) (2009). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as organic heart disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis In this case, the Veteran contends that his current heart problems are related to the cardiovascular abnormalities detected during active service. The Veteran's June 1957 enlistment examination report shows no indication of prior or current heart problems. Beginning in 1969, he had occasional chest discomfort, which appears to have been attributed to a recurrent pneumothorax. In March 1977, an EKG showed an intermittent left bundle branch block pattern. Specifically, a Holter monitoring showed intermittent LBBB with bypass conduction, and a treadmill showed rapid acceleration of his heart rate with exercise and complete LBBB followed by supraventricular tachycardia. At the time, the Veteran denied any palpitations, chest pains, or other cardiac problems. In April 1977, a doctor opined that the EKG findings were a form of bypass conduction involving aberrant conduction around the Bundle of His. The doctor recommended further electro-physiological testing at another, better-equipped facility, but the Veteran retired from service before further testing could be conducted. However, a second EKG conducted in June 1977 confirmed the findings of an intermittent LBBB pattern. Following separation from service, there is no indication that the Veteran had any symptoms of heart problems. Then, in November 2003, he was playing tennis when he felt mid-epigastric discomfort, nausea, dizziness, and shortness of breath. He was hospitalized at Seton Medical Center. An EKG showed that the LBBB was still present. An angiogram showed normal large coronary arteries, with a mild lesion in the left anterior descending of about 30 percent, mild to moderate apical left ventricular hypokinesia with an overall ejection fraction of 50 percent, and a normal right iliofemoral system. The doctor assessed very mild coronary artery disease and left ventricular hypertrophy. The Veteran was discharged with instructions to follow-up as an outpatient. In March 2008, he was afforded a VA examination. He said he continued to get heartburn and pain much like the pain he felt upon his 2003 hospital admission. However, he was able to play tennis every 2 days, and walked 1 or 2 miles every day without any shortness of breath or chest pain. Examination of the cardiac system revealed no jugular vein distention. The heart had a rapid regular rhythm, with no murmurs or gallops. There was no evidence of cardiomegaly. The examiner reviewed the Veteran's previous 1977 and 2003 medical records and concluded that the only evidence of cardiac disease was the conduction defect of left bundle branch block. There was no evidence of significant coronary artery disease, angina pectoris, or congestive heart failure, although tachycardia was present. However, the examiner expressed concern over the Veteran's current tachycardia. The examiner ordered an EKG, but there is no documentation of it having been completed. He also recommended that the Veteran follow up with his primary care physician regarding the tachycardia and blood pressure. At the request of the Board, a VA cardiologist, Dr. S.P., reviewed the Veteran's claims file and offered his expert opinion in an October 2009 report. Dr. S.P. noted that LBBB was diagnosed in March and April 1977, and had not existed on EKG prior to that date. Thus, the doctor stated it is clear that the LBBB developed during active military service. Next, the doctor stated that the coronary artery disease (CAD) diagnosed in 2003 bears no direct causal relationship to the LBBB; in other words, LBBB does not cause CAD. Both LBBB and CAD may result from some other condition that is a risk factor for both, such as high blood pressure. However, review of the Veteran's military records was noted to reveal no condition that would cause either LBBB or CAD, and so the reviewing physician determined that it is not likely that the Veteran's CAD could be related to his military service. Finally, Dr. S.P. stated it is not possible to determine with certainty the relationship of the March 2008 tachycardia to service related conditions, because there were no details (e.g., EKG or a specific heart rate) included in the March 2008 VA examination report. However, Dr. S.P. opined that it is at least as likely as not that the March 2008 tachycardia is related to the bypass tract tachycardia diagnosed in the spring of 1977 while the Veteran was on active duty. The doctor further specified that this was not LBBB, but a service-related condition which was incompletely evaluated prior to discharge from the service. Based on the foregoing, the Board finds that the weight of the evidence preponderates against a grant of service connection for coronary artery disease. First, with regard to the presumptive service connection provisions in the law for chronic diseases, the evidentiary record herein is negative for any manifestation of organic heart disease either during service or within the Veteran's first post-service year. Indeed, a June 1977 Medical Evaluation Board report notes that the Veteran was asymptomatic from a cardiac standpoint, and he was not diagnosed with CAD until 2003. Thus, because the evidence fails to establish any clinical manifestations of hearing loss within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease are not satisfied. Next, the competent medical evidence weighs against a grant of service connection for CAD. Although mild CAD was diagnosed in 2003 at Seton, the March 2008 VA examiner found no evidence of cardiac abnormality other than the LBBB, and specifically found no evidence of significant CAD. Also, Dr. S.P. opined that the Veteran's CAD was not related to his military service, as there was no nexus between the Veteran's LBBB and CAD, and there were no risk factors for CAD present during the period of active service. Thus, the competent evidence weighs against finding that the Veteran's CAD is related to his active service. In addition, continuity of the disorder has not been established by the evidence. The Board acknowledges that the Veteran is competent to give evidence about what he experienced; for example, he is competent to discuss his heart palpitations and other experienced symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the Federal Circuit Court has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). Similarly, the Court of Appeals for Veterans Claims has held that, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the resolution of issues which involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In the present case, the Veteran's dizziness, shortness of breath, and other cardiac symptoms are found to be capable of lay observation, and thus his statements constitute competent evidence. The Board must now consider the credibility of such evidence. The Veteran's service records show no evidence of dizziness or related symptoms in active service. Following service, there was no documentation of complaints or treatment for cardiac problems until 2003, over 25 years after his separation from service. While he is clearly sincere in his beliefs, in light of these factors, the Veteran's current statements to the effect that he has experienced continuous symptomatology since active service, while competent, are not deemed to be credible. Therefore, the absence of documented complaints or treatment for over 25 years following his military discharge is more probative than his current recollection as to symptoms experienced in the distant past. See Curry v. Brown, 7 Vet. App. 59 (1994). Accordingly, continuity of symptomatology is not established by either the competent evidence or the Veteran's own statements. However, although the evidence does not show a nexus between CAD and active service, the Board finds that the evidence is in relative equipoise with regard to whether the Veteran's tachycardia is related to active service. Namely, Dr. S.P. opined that the Veteran's tachycardia observed in March 2008 was at least as likely as not related to the tachycardia documented during active service. The Board notes that, although the evidence does not establish continuity of symptoms or treatment for tachycardia, because there is no documentation of tachycardia following separation from service until 2008, continuity is established by the competent medical opinion of Dr. S.P. and by the lay statements of the Veteran regarding his symptoms. Buchanan, supra. Moreover, there are no other medical opinions regarding a nexus between the Veteran's tachycardia and active service. The Board finds that the evidence raises a reasonable doubt that there is a nexus between the Veteran's current tachycardia and the tachycardia observed during active service. Thus, considering the statements of the Veteran and the competent medical evidence, the Board will resolve all reasonable doubt in the Veteran's favor and grant the claim for service connection with regard to tachycardia. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for coronary artery disease is denied. Service connection for tachycardia is granted. ___________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs