Citation Nr: 1007622 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-11 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for coronary artery disease, to include as secondary to service-connected post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1970. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In January 2009, the Board remanded this matter so that additional development of the evidence could be conducted. FINDING OF FACT The preponderance of the evidence of record is against finding that the appellant's claimed coronary artery disease was demonstrated during active duty; a cardiovascular-renal disease was not manifested to a compensable degree in the first year following the Veteran's separation from active duty service; symptoms of coronary artery disease were not continuous after service separation; and, the claimed coronary artery disease is not shown by competent evidence to have been related to his service-connected PTSD. CONCLUSION OF LAW Coronary artery disease was not incurred or aggravated during active duty service, may not be presumed to have been so incurred, and was not caused or aggravated by a service- connected disability. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and to Assist 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; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 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, the RO provided the appellant with notice of the information or evidence needed to substantiate his claim in a letter dated in July 2004. Concerning the content of the notice with regard to the claim for service connection, the appellant has not alleged that VA failed to notify him about the information and evidence that is necessary to substantiate a claim for service connection for a disability. The first notice requirement was met by VA in the July 2004 notice letter in which the RO informed the appellant that, to establish service connection for a disability, the evidence must show three things: (1) an injury in military service or a disease that began in or was made worse during military service or an event in service causing injury or disease; (2) a current physical or mental disability; and (3) a relationship between the current disability and an injury, disease, or event in service. With regard to the first element that must be shown, the RO stated that VA would obtain the appellant's service treatment records and other military records if needed. Concerning the second part that must be shown, the RO informed the appellant that a current disability may be shown by medical evidence or other evidence showing persistent or recurrent symptoms of disability, and the RO stated that it would obtain any records that the appellant told VA about in this regard. Finally, the RO told the appellant that the third element is usually shown by medical records or opinions and that the appellant could submit this medical evidence himself of VA would request it if the appellant informed VA. The second notice requirement, concerning the information or evidence that the appellant was to provide, also has been met in this case in the July 2004 letter. The notice provided examples of the types of medical and lay evidence that the Veteran could submit (or ask the VA to obtain) that were relevant to establishing his entitlement to service connection. Specifically, he was informed in the letter to submit any evidence relevant to his claimed conditions including statements from a doctor containing the physical and clinical findings; results of laboratory tests or x-rays; the dates of examinations and tests; and, statements from other individuals who had witnessed how the claimed disabilities affected him. The third notice requirement, the information and evidence that VA would provide, also has been met in this case because the RO informed the appellant in July 2004 that VA would obtain his service treatment records and other military records if needed; that VA would assist him in getting any records, including medical records, employment records, or records from other Federal agencies, which the appellant told VA about; and, that it would provide him with a medical examination or obtain a medical opinion if VA decided that it was necessary to make a decision on his claim. The Veteran was also informed in the July 2004 letter that VA would help him obtain private treatment records if he completed and returned the attached VA Form 21-4142 (Authorization and Consent to Release Information) that would authorize the RO to assist him in this regard. 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. 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. In the present appeal, the Veteran was provided with notice of the type of evidence necessary to establish a disability rating and effective date for the disability on appeal. In this regard, the Board notes that the 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. Following the March 2006 letter, the RO readjudicated the Veteran's claim for service connection in a supplemental statement of the case (SSOC). Thus, VA cured any defect in the notice before the case was transferred to the Board on appeal, and no prejudice to the appellant will result in proceeding with the issuance of a final decision. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Moreover, the Board concludes below that the Veteran is not entitled to service connection for coronary artery disease. Thus, any questions as to the disability rating or appropriate effective date to be assigned are rendered moot. In addition, the duty to assist the Veteran has been satisfied in this case. His service treatment records as well as all identified and available VA 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. His records from the Social Security Administration (SSA) have also been obtained and associated with the claims file. In addition, the Veteran was afforded VA examinations in July 2005 and July 2009 in connection with his claim for service connection. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As discussed below, the Board finds that the July 2009 VA examination and opinion obtained in this case are more than adequate. The opinion was predicated on a full reading of the records contained in the Veteran's claims file as well as on a physical examination. The opinion considers all of the pertinent evidence of record, to include the Veteran's medical records as well as his own statements, and provides a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board does observe the contention of the Veteran's representative that the July 2009 VA examination was inadequate because it was performed by a physician's assistant and internist rather than a medical doctor or cardiologist. However, the Board notes that in Cox v. Nicholson, No. 03-1671 (U.S. Vet. App. Jan. 19, 2007), the Court held that it has never required that medical examinations under section 5103A only be conducted by physicians. As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." In Cox, a nurse practitioner was found to fit squarely into the requirement of section 3.159(a)(1) as a provider competent to provide diagnoses, statements, or opinions. Similarly, in this case, the July 2009 examiner was a physician's assistant, and thus, completed medical education and training and meets the requirement of section 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions. Moreover, the Board notes that an internist is defined as a "physician trained in internal medicine." See STEDMAN'S MEDICAL DICTIONARY 913 (27TH Ed. 2000). The Board also observes the argument that the July 2009 VA opinion was not accompanied by sufficient rationale. However, the Board notes that the July 2009 VA examiner reviewed the claims file and the Veteran's reported history and performed a physical examination prior to rendering his opinion. He also indicated the other factors to which the current disorder was more likely related. As such, he provided the requested opinion and then explained that there was another more likely etiology. Therefore, the Board concludes that the July 2009 VA examination report and the opinion are sufficient upon which to base a decision. VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them a SOC and SSOCs, which informed them of the laws and regulations relevant to the Veteran's claim. The Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this increased rating appeal. Factual Background In this case, the Veteran contends that service connection is warranted for his coronary artery disease secondary to his service-connected PTSD. 38 C.F.R. § 3.310. As noted above, the appellant served on active duty from February 1969 to September 1970. His service treatment records show that an October 1968 pre-induction examination and a September 1970 separation examination found his heart to be normal. There are no documented complaints or treatment for any heart-related problems during his period of active service. The report of a private hospital discharge summary shows that in the Veteran later underwent a heart catherization procedure in November 2000. The report included a final diagnosis of coronary artery disease. A December 2001 VA cardiology consultation note lists coronary artery disease status post myocardial infarction times three among the Veteran's past medical history. Congestive heart failure was also listed, which was diagnosed in October 2001. An April 2003 rating decision shows that service connection has been granted for post traumatic stress disorder (PTSD). The Veteran submitted his service connection claim for a heart disorder, to include as secondary to his service- connected PTSD, in January 2004. See VA Form 21-4138. He also submitted records from the Social Security Administration (SSA) at that time, which included a December 2003 favorable disability decision. As part of the SSA decision, the Veteran's impairments were noted to include coronary artery disease, recurrent congestive heart failure, and PTSD. In support of his claim, the Veteran submitted an article from the Internet in May 2004, entitled "Researchers Link Post-Traumatic Stress Disorder with Heart Disease." The article, dated in November 1999, states in part that combat veterans with PTSD appear to be at higher risk for coronary artery disease. The study, conducted by the Department of Outcomes Research at Catholic Health Initiatives in Louisville, Kentucky, was also noted to suggest that PTSD may actually cause heart disease. In July 2004, the Veteran also submitted another article taken from the Internet, entitled "New Evidence Links Psychological Trauma to Future Heart Disease." This article, dated in March 2004, found that people who had experienced traumatic stress events such as service or urban disaster are at greater risk of developing heart disease down the road. The research was conducted by the New York Academy of Medicine. After a review of the medical literature, the fact remains that these articles are too general in nature, and no examiner has specifically related the information contained therein to the Veteran. A medical treatise [textbook, or article] must provide more than speculative, generic statements. Wallin v. West, 11 Vet. App. 509, 514 (1998); Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). Thus, the Board finds that the medical literature is of little probative value in this case. The Board notes that the Veteran was afforded VA examinations by a psychologist and an internist in July 2005. The Board finds, however, that the July 2005 opinion of the VA psychologist is internally inconsistent insofar as it states that coronary heart disease can be exacerbated by stress, but that it cannot be said that the Veteran's heart problems are a "direct" result of the Veteran's PTSD. The psychologist also pointed out that the Veteran was a heavy smoker and drinker for many years, and that this type of lifestyle, as well as genetic predisposition was "just as likely to be the cause of the veteran's coronary disease" as his military- related stress. The examiner did not explain why she concluded that the Veteran's stress from PTSD did not cause the Veteran's condition, if coronary artery disease could be exacerbated by stress. The examiner also did not address the possibility that the Veteran's PTSD aggravated his coronary artery disease even if it did not directly cause the Veteran's claimed disorder. Additionally, the language used by the July 2005 examiner, that it was "just as likely" that the Veteran's military related stress caused his claimed disability, suggested that the Veteran may be entitled to the benefit of the doubt as to the issue of causation. Thus, the Board concludes that the examiner's opinion was unclear. The July 2005 VA examination conducted by the VA internist is also inconclusive in that it summarily concluded that the Veteran's coronary artery disease was not caused by his service-connected PTSD. In support of the opinion, the examiner only stated only that there was no conclusive medical evidence proving that PTSD caused heart disease. As above noted, the Board remanded the Veteran's claim in January 2009 to develop additional evidence. The remand instructed the RO to obtain VA medical records dated from March 2005 to the present. A review of these records shows that coronary artery disease was diagnosed in July 2005, March 2006, and July 2006, and congestive heart failure was diagnosed in June 2008 and February 2009. The Board also indicated in the prior remand that the Veteran should be afforded a VA examination to ascertain the nature and etiology of his coronary artery disease. The examiner was asked to address whether it is at least as likely that the Veteran's coronary artery disease was caused by his service- connected PTSD as its having been caused by some other factor or factors. The Board also instructed the examiner that, if it was concluded that Veteran's coronary artery disease was not as likely caused by PTSD as by other factors, he or she should state whether the Veteran's coronary artery disease had been aggravated by his PTSD. The Veteran was afforded such an examination in July 2009. The examiner reviewed the Veteran's claims folder and performed a physical examination. It was noted that the Veteran had had three myocardial infarctions since November 2000, and the Veteran himself denied having any symptoms of chest pain, shortness of breath, nausea, vomiting, diaphoresis, or palpitations. The Veteran also reported having a 70 pack a year history of smoking cigarettes, but stated that he quit between 2001 and 2002. The examiner diagnosed the Veteran with coronary artery disease. He noted that the Veteran was currently service-connected for PTSD and that the Veteran claimed that his coronary artery disease was caused by his PTSD. However, the examiner opined that the Veteran's coronary artery disease was neither caused by nor aggravated by his service-connected PTSD. Instead, he believed that the Veteran's coronary artery disease was more likely than a result of his long history of tobacco abuse and elevated cholesterol levels. Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. 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 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). For claims filed after June 9, 1998, a veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service on the basis that it resulted from an injury or disease attributable to the use of tobacco products by the veteran during the veteran's service. 38 U.S.C.A. § 1103(a) (West 2002); 38 C.F.R. § 3.300(a) (2009). A disability that is proximately due to or the result of a service-connected disease or injury is considered service- connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). (The provisions of 38 C.F.R. § 3.310 were amended in the course of this appeal, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made.) Certain chronic disabilities, such as cardiovascular-renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in- service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran's statements describing his symptoms are considered to be competent evidence. However, these statements must be viewed in conjunction with the objective medical evidence. Here, however, the Veteran has not so argued the existence of continuity of symptomatology. Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Analysis The Board has reviewed all the evidence in the appellant's claims file, which includes his written contentions, service treatment records, and VA and private medical records (to include examination reports). Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of service connection for the Veteran's claimed coronary artery disease, on either a direct, secondary, or presumptive basis. His service treatment records are entirely negative for any complaints of cardiac-related problems. The medical evidence does not show that there was an event, disease, or injury in service to which a current disorder could be directly related. See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease). Nor is there is any medical evidence of record that links any current disorder to a disease or injury in service. In fact, the Veteran has not even alleged that his coronary artery disease is directly related to service, as he has instead claimed that it is secondary to his service-connected PTSD. Therefore, the Board finds that coronary artery disease did not manifest during service and has not been shown to be causally or etiologically to an event, disease, or injury in service. On this record, the Veteran is not shown to have manifested findings of problems associated with coronary artery disease until many years after service. The Board finds this gap in time significant, and it weighs against the existence of a link between his current heart-related problems and his time in service. Maxson. The Board also observes that while a diagnosis of coronary artery disease was made in 2000, that diagnosis was rendered decades after the Veteran's 1970 separation from active duty. As such, presumptive service connection for coronary artery disease is not for consideration. There is also no post- service continuity of complaints or symptoms pertaining to any cardiac-related disability. As to the Veteran's claim that he has coronary artery disease that is related to his service-connected PTSD, the Board also finds that the medical evidence of record does not support this contention. The Veteran is service-connected for PTSD; however, the medical evidence has not established a relationship between his coronary artery disease and his service-connected disability. In this regard, the July 2005 VA psychologist noted that coronary artery disease could be exacerbated by stress, but stated that it could not be said that the Veteran's heart problems were a "direct" result of his PTSD. Similarly, in connection with the July 2005 VA examination, an internist opined that that coronary artery disease was not caused by PTSD. The July 2009 VA examiner also opined that the Veteran's coronary artery disease was not caused or aggravated by his service-connected PTSD. Rather, the examiner opined that it was more likely than not that the coronary artery disease was the result of the Veteran's long history of smoking and elevated cholesterol levels. Thus, the above-discussed opinions fail to provide an etiological relationship between the Veteran's claimed coronary artery disease and his service-connected PTSD. Concerning the above-cited VA examination reports, the Board finds that, when taken together, they provided sufficient detail for the Board to make a decision in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Here, as discussed above, the findings proffered by the VA psychologist in the course of the July 2005 examination were internally inconsistent, and the negative opinion rendered by the VA internist in July 2005 was not accompanied by a sufficient medical rationale. Nevertheless, they also do not provide conclusive, affirmative evidence supporting the Veteran's claim. Moreover, the VA opinion obtained as a result of the July 2009 VA opinion is sufficient. The July 2009 VA examiner based his opinion on a review of the compete record, as well on his having had an opportunity to examine the Veteran. It is also significant that the July 2009 VA examiner cited to other contributing factors, namely the Veteran's long history of smoking and elevated cholesterol levels. The Board finds these July 2009 VA examination medical findings provided sufficient detail to enable the Board to perform a fully informed evaluation of the claim. Simply put, the medical evidence of record does not include a conclusive opinion affirmatively showing that Veteran currently has coronary artery disease that was either caused or aggravated by his service-connected PTSD. Accordingly, service connection cannot be granted on a secondary basis. 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. ORDER Entitlement to service connection for coronary artery disease is denied. ____________________________________________ JESSICA J. WILLS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs