Citation Nr: 1011900 Decision Date: 03/30/10 Archive Date: 04/07/10 DOCKET NO. 07-06 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for coronary artery disease, status post myocardial infarction. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Rochelle E. Richardson, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1968 to October 1971, and in the U.S. Navy from September 1972 to September 1974. He later served in the Florida and New York State Army National Guards, including at various times on active duty for training (ACDUTRA). This appeal to the Board of Veterans' Appeals (Board) is from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In August 2009, the Board remanded the claim to the RO via the Appeals Management Center (AMC) in Washington, DC, for further development and consideration. FINDING OF FACT The Veteran clearly and unmistakably had coronary artery disease before the period of ACDUTRA service in question, in January 2003, but there is not also clear and unmistakable evidence this pre-existing disease was not permanently exacerbated during or by that period of service beyond its natural progression. CONCLUSION OF LAW The Veteran's pre-existing coronary artery disease was aggravated by his ACDUTRA service in January 2003. 38 U.S.C.A. §§ 101, 1110, 1131, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.306 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) enhanced VA's duties to notify and assist Veterans with claims for VA benefits. The VCAA was codified at 38 U.S.C.A. § 5100, 5102, 5103, 5103A, 5107, 5126, and the implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Here, though, since the Board is granting the Veteran's claim for service connection for coronary artery disease, status post myocardial infarction - in full, there is no need to discuss whether there has been compliance with these notice- and-duty-to-assist provisions of the VCAA. This is because even were the Board to assume, for the sake of argument, there has not been, this is ultimately inconsequential and, therefore, at most nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). His claim is being granted, regardless. II. Whether the Veteran is Entitled to Service Connection for Coronary Artery Disease, Status Post Myocardial Infarction Service connection is granted if the evidence shows a current disability resulted from an injury or a disease that was incurred or aggravated during active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1). National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [, at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Cardiovascular disease, including the precursor hypertension, will be presumed to have been incurred in service if manifested to a compensable degree within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. So service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). Where the determinative issue involves medical causation or medical diagnosis, there generally must be competent evidence to the effect that the claim is plausible; lay assertions regarding this generally are insufficient. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A layperson generally is incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998). There are exceptions to this general rule, however. Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When, for example, 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. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Every person employed in the active military, naval, or air service on active duty shall be presumed to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Concerning aggravation, service connection may be granted for a pre-existing condition if it was aggravated during service beyond its natural progression. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A pre-existing injury or disease will be presumed to have been aggravated by active military service where there is an increase in disability during service, unless there is clear and unmistakable (obvious or manifest) evidence that the increase in severity during service was due to the natural progression of the disability. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a) and (b). These presumptions of soundness and aggravation, however, do not apply to periods of ACDUTRA. See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). There is no aggravation of a pre-existing disease or injury if the condition underwent no increase in severity during service on the basis of the evidence of record pertinent to the manifestations of the disability prior to, during, and subsequent to service. 38 C.F.R. § 3.306(b). Also, intermittent or temporary flare-ups during service of a pre- existing injury or disease do not constitute aggravation; rather, the underlying condition, as contrasted with symptoms, must have worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). When a condition was not noted at time of enlistment or acceptance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003 (July 16, 2003) (holding, in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. §§ 1111, 1132 to the extent that it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116 (2003); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Independent medical evidence is needed to support a finding that the pre-existing condition increased in severity during the Veteran's service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As explained, the first and indeed perhaps most fundamental requirement for any service-connection claim is there must be competent evidence of the existence of the currently claimed disability. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (service connection presupposes a current diagnosis of the condition claimed, to at least confirm the Veteran has it; without this minimum level of proof, there can be no valid claim). Here, the report of the Veteran's November 2009 VA Compensation and Pension Examination (C&P Exam), which he recently had on remand, confirms that he has coronary artery disease (heart disease). So there is no disputing he has this claimed condition - and, indeed, according to the VA compensation examiner, has for several years now. When remanding this case in August 2009 to have the Veteran undergo that November 2009 VA C&P Exam, the Board needed clarification as to just how long the Veteran had had this heart disease - and especially insofar as whether it predated his ACDUTRA service in January 2003. A medical opinion concerning the history of this disease was needed because he contends that in January 2003 he was recalled to active duty in anticipation of being deployed to Iraq, but that, while awaiting his final orders later that same month in New York, he suffered a heart attack. He further alleges that he was then removed from active duty status and transferred to the Florida National Guard, where he was placed on medical hold and ultimately medically discharged. See his February 2006 notice of disagreement (NOD, on VA Form 21-4138, statement in support of claim) and his February 2007 substantive appeal (on VA Form 9). The sole basis of his claim concerns that anticipated service in January 2003, not any of his prior periods of service. In further explanation for remanding the claim for this additional medical comment, the Board pointed out that, although the Veteran's National Guard service treatment records (STRs) did not, themselves, indicate he sustained a myocardial infarction (i.e., heart attack) in January 2003 while on ACDUTRA, there nonetheless was contemporaneous private medical evidence suggesting he did. In early February 2003, so the month after, a private physician, Dr. A.S, had diagnosed a non-Q-wave myocardial infarction and had treated the Veteran for this with cardiac catheterization. That was very shortly after his confirmed period of ACDUTRA from January 13-16, 2003, as verified by specific orders for active duty for special work for those particular dates. So the Board determined there was probative (competent and credible) evidence of record establishing he suffered a heart attack while on ACDUTRA in January 2003. Since, however, other records on file indicated the Veteran also previously had suffered another heart attack just a few years earlier - in May 2000, and that he had a documented family history of heart disease and had been a chronic smoker for many years, it was unclear whether any pre-existing heart disease had been chronically aggravated (i.e., made permanently worse) during or as a result of that subsequent period of ACDUTRA service in January 2003. The Board noted additionally that he had complained of chest pain as far back as November and December 1968, so even at the outset of his very first period of service in November 1968. As well, his February 1991 National Guard entrance examination had resulted in a diagnosis of sinus bradycardia. Moreover, a May 1995 National Guard STR showed diagnoses of hypercholesterolemia (high cholesterol) and high blood pressure, and an August 1995 National Guard cardiovascular screening also found that he was at high risk from elevated blood pressure. The Board went on to point out that the report of a May 2000 consultation with Dr. A.S., following that first heart attack, indicated there was a strong family history for coronary artery disease since both the Veteran's brother and sister had had it. His mother and sister both had had bypass surgery. Dr. A.S. also had noted in May 2000 that the Veteran drank a couple buckets of coffee and a six pack of beer each day. In addition, a contemporaneous VA treatment record also from May 2000 indicated the Veteran had chronically smoked for 35 years by the time of that first heart attack (2 packs a day since he was 15 years old) and had a 10-year history of hypertension. So, given this documented history, the Board remanded the Veteran's claim for a medical opinion concerning whether his ACDUTRA service in January 2003 had anything to do with him suffering another hearing attack, even assuming he had that heart attack during that relatively brief period of service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); see also 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). The Veteran, as mentioned, had this requested VA C&P Exam in November 2009. After reviewing the file and evaluating him, the designated examiner indicated there was a history of coronary artery disease (CAD), status post (s/p) stent for chest pain to right coronary artery (RCA) in 2000, myocardial infarction (MI) times 3 (in 2003, 2004, and 2005), and s/p five vessel (5V) coronary artery bypass graft (CABG) in 2006. So this examiner determined there was clear and unmistakable evidence of coronary artery disease prior to the Veteran's period of ACDUTRA service in question in January 2003 - indeed, dating back to at least 2000. However, this examiner then went on to explain that there was not also the required clear and unmistakable evidence that this pre-existing disease was not aggravated during or by that period of service. Rather, according to this examiner, at this time in question (in January 2003) the Veteran was preparing for Iraq duty as a truck driver, and his stress anticipating combat as well as the physical preparation may have aggravated his cardiac condition. The report of that November 2009 VA C&P exam is thorough, well-reasoned, and based on an independent review of the relevant evidence, including the Veteran's history and an objective clinical evaluation. Hence, the findings noted in the report of that evaluation have the proper foundation and predicate and, therefore, are entitled to a lot of probative weight. See Elkins v. Brown, 5 Vet. App. 474 (1993); Black v. Brown, 5 Vet. App. 177 (1993). Generally speaking, merely indicating conditionally that a disease "may" have been caused or, in this particular instance, aggravated by the Veteran's military service is insufficient reason to grant service connection because this is just as well tantamount to saying this "may not" have occurred. There are a line of precedent cases discussing the lesser probative value of opinions like this that are equivocal, which essentially state that it is possible the condition at issue was caused or aggravated by the Veteran's military service. See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Perman v. Brown, 5 Vet. App. 227, 241 (1993); Winsett v. West, 11 Vet. App. 420, 424 (1998); and Obert v. Brown, 5 Vet. App. 30 (1993). See, too, Bloom v. West, 13 Vet. App. 185, 187 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). But, on the other hand, an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology of obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Moreover, use of cautious language does not always express inconclusiveness in a doctor's opinion on etiology. An etiological opinion should be viewed in its full context, and not characterized solely by the medical professional's choice of words. See Lee v. Brown, 10 Vet. App. 356, 338 (1997). Here, although the November 2009 VA C&P examiner was not altogether definitive in concluding the Veteran's ACDUTRA service in January 2003 had aggravated his pre-existing coronary artery disease - especially with the expectation of what might occur in combat in Iraq and the physical training in anticipated preparation, the VA examiner was nonetheless sufficiently convinced that the pre-existing coronary artery disease was appreciably worsened during or by that period of ACDUTRA service in January 2003 based on his review of the file and personal evaluation of the Veteran, which included consideration of specific relevant clinical findings comparing the status of this disease prior to, during, and since that period of service. So service connection is warranted since there is no competent evidence to the contrary. ORDER Service connection for coronary artery disease, status post myocardial infarction, is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs