Citation Nr: 1012175 Decision Date: 04/01/10 Archive Date: 04/14/10 DOCKET NO. 07-11 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a heart condition as secondary to diabetes mellitus and posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.M. Ivory, Associate Counsel INTRODUCTION The Veteran had active military service from January 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from both an April 2005 rating decision and a February 2006 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York. In pertinent part of the April 2005 decision, the RO denied service connection for a heart condition. The February 2006 rating decision continued the previous denial of service connection. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the issue on appeal has been accomplished. 2. The Veteran does not currently have a chronic heart condition that was caused by or permanently worsened by service, or the Veteran's service-connected diabetes mellitus, or PTSD. CONCLUSION OF LAW Service connection for a heart condition is denied. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 3.307, 3.309, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. The Veteran should be informed as to what portion of the information and evidence VA will seek to provide, and what portion of such the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, legally adequate notice was provided to the Veteran in October 2004 and April 2007 correspondences. These letters detailed the elements of a service connection claim, a secondary service connection claim, described the evidence and information necessary to substantiate the claim, and set forth the respective responsibilities of VA and the Veteran in obtaining such. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (hereinafter Court) held that, upon receipt of an application for service connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) also require notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO informed the Veteran of the disability rating and effective dates in a July 2006 letter. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished with respect to the issue decided here, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained service treatment records and VA treatment records. The RO also afforded the Veteran VA examination in March 2005. The Board finds that a new VA examination is not warranted since careful review of the Veteran's VA treatment records does not reveal a current diagnosis of a heart condition since the date of the Veteran's claim, August 3, 2004. Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional outstanding evidence that is necessary for a fair adjudication of the claim that has not been obtained. Finally, the Veteran was advised of his right to a hearing before the RO and/or before the Board, but he waived that right. No further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Under these circumstances, the Board finds that the Veteran is not prejudiced by the Board proceeding, at this juncture, with an appellate decision on the claim on appeal. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during a Veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be: medical evidence of a current disability; medical evidence, or in some cases lay evidence, of in-service occurrence or aggravation of a disease or injury; and, medical evidence of a nexus between an in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection also may be granted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service- connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran has not asserted that he has a heart disorder that was incurred in or aggravated by service. Rather, he contends that he has a heart disorder, namely endocarditis, that is due to or aggravated by his service-connected conditions of diabetes mellitus and post traumatic stress disorder (PTSD). Specifically, he asserts that drug use caused by PTSD brought on a chronic heart disorder. After a careful review of the Veteran's claims file the Board finds that the preponderance of the evidence is against a grant of service connection for a heart condition secondary to diabetes mellitus or PTSD. The Veteran asserts that he has a heart condition as a result of intravenous drug abuse which is secondary to his PTSD. The Board notes that in May 2005 the RO granted the Veteran service connection for hepatitis C secondary to his PTSD; it was noted that the hepatitis C was a result of intravenous drug abuse that was secondary to his PTSD. The Veteran is now asserting this same theory of entitlement to obtain service connection for a heart condition. Regardless of the theory, as explained below, the evidence of records is against the diagnosis of a current chronic heart condition. The Veteran contends that reports of VA echocardiograms dated in August 1998, June 2000, and November 2003 show that he has a heart condition. The conclusions or interpretations on these reports read as follows: Moderate right ventricular chamber enlargement. Mildly reduced left ventricular systolic function. Report of August 1998 VA echocardiogram Mild global left ventricular systolic dysfunction but otherwise normal study. Report of June 2000 VA echocardiogram Nondiagnostic dobutamine stress echocardiogram. His target heart rate was not obtained. Report of November 2003 echocardiogram The Veteran asserts that he has a diagnosed heart condition. In various statements, including in an October 2005 statement, he mentioned a diagnosis of endocarditis. The Veteran's VA treatment records state that his past medical history includes prior treatment for "acute endocarditis with secondary CHF [congestive heart failure]". See the report from the March 2005 VA heart examination. While the Veteran continues to indicate that he has a current chronic heart disorder, the Board finds that the objective medical evidence of record covering the period since the date of claim, August 3, 2004, does not contain any diagnosis of a current chronic heart condition. To the contrary, the weight of the medical evidence of record is clearly against the Veteran's claim. After the Veteran submitted his claim for service connection, VA provided a heart examination in March 2005 to ascertain whether or not the Veteran had a chronic heart problem, and, if so, whether any such problem was related to service. In the March 2005 report, the examiner stated the following: In the past the veteran was treated for acute endocarditis with secondary CHF. It was determined that the condition was secondary to IV drug use. He is not being treated for any cardiac conditions at this time. VA heart examination report, March 2005. On physical examination, the examiner reported the following specifics: "HEART: S1, S2. Regular rate and rhythm. No extra sounds or murmurs. DIAGNOSIS: Normal heart examination without evidence of cardiac disease." In April 2005, the Veteran was seen in the emergency department of the Syracuse VAMC for evaluation of possible chest pains. The examiner noted that the Veteran did not have any anterior chest pain or pain that was medial to his left nipple. On physical examination, it was noted that the Veteran's vital signs were unremarkable. After physical examination of the heart the examiner reported, "No murmurs, gallops or rubs" and "good radial pulses bilaterally". It was noted that an EKG showed sinus rhythm, no evidence of ischemia. Chest X-ray was reportedly unremarkable. The Veteran was given nitroglycerin in the emergency department but did not have any relief of pain. He was then given Toradol, and had good relief of pain. The examiner gave the following impression: Discomfort does not appear to have any anginal characteristics. No evidence of heart ischemia on EKG, blood work. No evidence of pulmonary disease on chest X-rays. I presume this is all an extension of his radicular pain and in fact this site of pain is contiguous with his prior radicular pain. The March 2005 heart examination revealed that prior heart problems were acute, and that there was no evidence of a current, chronic heart condition. The findings on the report of the April 2005 emergency department visit are consistent with the objective medical findings from the March report. These reports are the most recent medical records pertaining to the Veteran's heart. They note the prior history of cardiac complaints and irregularities, but they clearly indicate the examiner's shared conclusion that the Veteran does not currently have a chronic heart disorder. Records of medical treatment provided to the Veteran from 2005 to the present day have not shown a current diagnosis of a chronic heart condition. In order for service connection to be granted, the evidence must establish, among other things that the claimant currently has the disability for which service connection is claimed. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 526 U.S. 1144 (1999); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Here, however, a careful review of the Veteran's VA treatment records and VA examination do not reveal any current diagnosis of a chronic heart condition, to include endocarditis or congestive heart failure. Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability and in the absence of a proof of present disability there can be no claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The term "disability" as used for VA purposes refers to impairment of earning capacity due to disease, injury, or defect, rather than the disease, injury, or defect itself. Allen v. Brown, 7 Vet. App. 439, 448 (1995). While the Veteran maintains that he does have a current heart problem, and some reports from 1998 to 2003 note cardiac irregularities and complaints in the past, the medical evidence since 2005 is consistent in indicating that the Veteran has no current chronic heart disorder. Without a current disability service connection must be denied. The Board recognizes that the Court of Appeals for Veterans Claims has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Here, however, examiners have specifically indicated that prior cardiac complaints and irregularities were acute, and not chronic. There is no opposing medical evidence. The Board finds that for service connection to be warranted there must be a current disability resulting from an in- service condition or injury. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1993). Existence of current disability must be shown by competent medical evidence. Degmetich v. Brown, 104 F.3d 1328 (1997). "Current disability" means a disability shown by competent medical evidence to exist at the time of the award of service connection. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, there is no evidence of a current disability. Without evidence of a current disability that might be secondary to his diabetes mellitus or PTSD, service connection for a heart condition must be denied. In summary, while there is evidence of a history of a heart condition, specifically congestive heart failure and endocarditis, there is no evidence of a current diagnosis of a heart condition since the date of the Veteran's claim of August 3, 2004. Since the file contains no medical evidence supporting a finding that the Veteran has a current, chronic disability of a heart condition, service connection can not be granted secondary to diabetes mellitus or PTSD. Simply put, service connection cannot be granted if the claimed condition is not present. Thus, service connection is denied, and the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. ORDER Service connection for a heart condition secondary to diabetes mellitus or PTSD is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs