Citation Nr: 1014802 Decision Date: 04/19/10 Archive Date: 04/30/10 DOCKET NO. 09-06 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for a heart disability, to include the residuals of a myocardial infarction claimed as secondary to surgery for a service-connected low back disability. WITNESS AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Nathaniel J. Doan, Associate Counsel INTRODUCTION The Veteran had active service from September 1943 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana, which denied the benefit sought on appeal. The Veteran recently submitted additional evidence in support of his appeal. He waived initial consideration of this evidence by the agency of original jurisdiction. 38 C.F.R. § 20.1304 (2009). The Veteran and his wife testified before a hearing officer at the RO in November 2008. A copy of the transcript of this hearing has been associated with the claims file. In an October 2009 statement, the Veteran clarified that he did not wish to have a Board hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All evidence necessary to decide the claim has been obtained; the Veteran has been provided notice of the evidence necessary to substantiate his claim and has been notified of what evidence he should provide and what evidence VA would obtain; there is no indication that the Veteran has evidence pertinent to his claim that he has not submitted to VA. 2. The Veteran's heart disability is not related to service, and such is not claimed; the service-connected low back disability in June 1976 did not proximately cause his myocardial infarction that occurred eight days later in July 1976. CONCLUSION OF LAW Service connection for a heart disability, including a myocardial infarction, including as secondary to service- connected low back disability, is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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). In order to be consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice 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. During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that, upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must indicate that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board finds that VA has met these notice duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. The Veteran was issued VCAA notification letters in December 2007 and September 2009. These notices fulfilled the provisions of 38 U.S.C.A. § 5103(a). The Veteran was informed about the information and evidence not of record that is necessary to substantiate his claim; the information and evidence that VA will seek to provide; and the information and evidence the claimant is expected to provide. In addition, these letters provided the Veteran notice regarding the evidence and information needed to establish disability ratings and effective dates, as outlined in Dingess. The Veteran was provided notice regarding the elements of a secondary service connection claim under 38 C.F.R. § 3.310. The claim was readjudicated in a January 2010 supplemental statement of the case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As the Veteran has not indicated any prejudice caused by any timing error, or any other existent error, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. See Shinseki v. Sanders, 129, S. Ct. 1696 (U.S. 2009). Moreover, in the present appeal, because the service connection claim is being denied, and no effective date or rating percentage will be assigned, the Board finds that there can be no possibility of any prejudice to the Veteran under the holding in Dingess, supra. The Board also finds that all necessary assistance has been provided to the Veteran. The record includes some service treatment records, but it has previously been determined that these records are incomplete and that the additional records are unavailable. The Veteran has clearly indicated, however, that he is not claiming that the heart disability began in service. Therefore, service treatment records are not directly relevant to the question on appeal. In addition, VA has notified the Veteran that certain VA treatment records are unavailable. In an October 2009 letter, the Veteran responded with copies of some records, and indicated there were not other alternative sources of the missing records. Review of the record also reveals that there was a question as to whether the Veteran had sought Social Security Administration (SSA) disability benefits at one point in his life. Pursuit of these records was unsuccessful and the Veteran has provided notice that he had not filed for such benefits. Therefore, after review of the record, the Board finds that all reasonable assistance has been provided in obtaining the relevant and pertinent records and no additional assistance is this regard is required. 38 C.F.R. § 3.159. The record also contains three VA opinions based on claims file review. These opinions are dated in November 2008, April 2009, and December 2009. After review of these opinion reports, the Board finds that they provide competent, non- speculative evidence regarding the question on appeal. Thus, there is no duty to provide another examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). As the Veteran has specifically contended that the disability did not predate the June 1976 back surgery, the Board finds that under that facts and circumstances of this case, there is no duty to obtain another VA opinion that addresses this aspect of the claim. The December 2009 VA opinion indicated that further opinion regarding aggravation, in the context of no cardiovascular disease prior to the June 1976 surgery, would involve a resort to speculation. In view of the foregoing, the Board finds that VA has fulfilled its duty to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Law and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Alternatively, the nexus between service and the current disability can be satisfied by medical or lay evidence of continuity of symptomatology and medical evidence of a nexus between the present disability and the symptomatology. See Voerth v. West, 13 Vet. App. 117 (1999). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability medically shown to be proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Reiber v. Brown, 7 Vet. App. 513, 515-16 (1995); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). For valid secondary service connection claims, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. See 71 Fed. Reg. 52744 (2006). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, such condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In order to establish service connection on a secondary basis, the evidence must show: (1) that a current disability exists, and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Compensation for secondary service connection based on aggravation of a nonservice-connected condition is warranted for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). For claims filed after October 10, 2006, as in this case, service connection may not be awarded based on aggravation of a nonservice-connected disability unless a pre-aggravation baseline level of disability has been established to allow a comparison to the current level of disability. 38 C.F.R. § 3.310(b). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Factual Background The Veteran contends that his current heart disability stems, in essence, from a myocardial infarction that occurred in July 1976. The Veteran contends that this myocardial infarction is secondary to his service-connected back disability. Specifically, he contends that a back surgery performed eight days prior to the myocardial infarction led to or caused the myocardial infarction. In a September 2009 letter, the Veteran made clear that he was contending that the July 1976 myocardial infarction was the first manifestation of heart disease. He has written that a conclusion that he had coronary artery disease prior to 1976 "is not supported by the facts nor the attending physicians and [his] other doctors statements that are already part of the case record on file." He has also submitted lay statements from other persons, to include his wife, attesting to the myocardial infarction being the first manifestation of heart disability. Service connection has been in effect for "degenerative changes of the low back status post surgery," rated as 60 percent disabling since December 2000. The Veteran has submitted numerous treatise documents that discuss the post-operative risks of surgery, to include heart complications. He also contends that the two events are linked due to their proximity in time. He has provided graphs and calculations based on the number of days in his life versus the days between these two events - the back surgery and myocardial infarction. The Veteran submitted several medical records that he asserts support his contention. In a July 1976 letter, a Dr. GN (initials used to protect privacy) wrote that the Veteran was "being treated for an acute myocardial infarction complicating post-operative recovery from a lumbar spine laminectomy and fusion." A July 1976 form written to excuse the Veteran from work is partially indecipherable but it is decipherable to the extent that it indicates that the Veteran's post operative back surgery was "complicated by occlusion" and later in the document notes again that there was post-operative coronary occlusion. In an August 1995 treatment record, it is noted that the Veteran had a "lumbar spinal fusion in 1976 followed by an acute myocardial infarction." An August 1995 letter includes that statement that the Veteran "had mild moderate inferior hypokinosis from a myocardial infarction which he suffered in 1976 following a lumbar fusion surgery." In a May 2008 letter, a private clinician, a Dr. JK wrote that he could not provide any verification or corroboration as to the events surrounding the Veteran's heart attack in 1976. He further wrote that he could not provide "any retrospective input as to the events of 1976." He did, however, reference the letter from Dr. GN dated in July 1976, and noted that this letter seemed "to indicate that [the Veteran's] heart attack did occur in the context of [the Veteran's] back surgery." He added that this letter seemed "to provide a fair amount of support to [the Veteran's] contention." In support of this contention, the Veteran also submitted a page from a March 1999 decision of the Board in another appeal by the Veteran. The claims on appeal at that time were service connection for a low back disability and bilateral hearing loss. Both claims were denied by the Board at that time, although service connection for the low back disability was subsequently granted. On the submitted page, the July 1976 statement from Dr. GN is summarized as showing that the Veteran was being treated for "complications resulting from his lumbar spine laminectomy and fusion." The RO obtained three separate opinions on the question on appeal. The question on appeal relates to whether two events in the past were related. These opinions, therefore, were based on claims file review, without current examination of the Veteran. In a November 2008 opinion, a VA physician also considered the effect of the Veteran's service connected tinnitus and hearing loss. The clinician opined that it did not appear that the initial myocardial infarction was directly due to the surgical procedure or anesthesia as it happened eight days later. He opined that the initial heart attack was likely related to coronary artery disease. He further wrote that there was no mainstream medical literature to support the spinal disc disease, tinnitus or hearing loss as risk factors for development or aggravation of coronary artery disease. The clinician finished his opinion by finding that "[i]t is more likely than not that the coronary heart disease is not either caused primarily nor caused to progress beyond what is the usual natural history of that disease by the spinal disc disease, tinnitus or hearing loss." In an April 2009 VA opinion, a different VA physician noted review of the claims file, to include newly submitted evidence. He wrote that he did not believe that there was a causal relationship between the back surgery and his heart disease. He noted that the heart disease manifested itself in terms of an acute myocardial infarction, but "medical literature and practice in no way relate this to the surgery itself." He noted that coronary artery disease may have been present but silent before the surgery, but the surgery, itself, did not induce the acute myocardial infarction. He made reference to the span in time between the two events. He added that the back problem did not, in any way, affect the natural history and course of the coronary artery disease. He finished his opinion by writing: "In short, I believe there is no relation causally between the [Veteran's] heart condition and back condition, i.e, it is not at least as likely as not that his coronary artery disease is any way related to his service-connected back condition." The claims file contains a third opinion provided after claims file review from a third clinician. In the December 2009 opinion, the VA physician documented the lack of certain records detailing the acute myocardial infarction, noting that there was no cardiology report, discharge summary from the hospital or any other records detailing the event. The December 2009 VA physician opined that, while it was true that individuals are at an increased risk for major medical problems at the time of anesthesia or surgery, this is usually limited to the first 24-36 hours of the perioperative setting. She wrote that this period did not extend to eight days out from surgery. She further noted that this was a noncardiac surgery which placed less demand on the heart, and therefore, less risk for a heart attack. She made further findings regarding the stress placed on the heart before and after the surgery. She also opined regarding factors that lead to the acute cardial infarctions and risk factors for suffering a heart attack prior to the age of 55 (the Veteran was under the age of 55 at the time of the myocardial infarction). She further wrote that the July 1976 letter from Dr. GN that described the myocardial infarction as "complicating" in no way suggested causation, but rather meant that it interfered with the usual recovery. She concluded her report by opining that "[t]he acute myocardial infarction, 8 days after back surgery is not caused by or the result of his back surgery." The December 2009 VA physician was also asked to opine regarding whether undiagnosed, underlying heart disease preexisted the June 1976 back surgery, and if so, was the disability aggravated by the surgery. The December 2009 VA physician opined that she could not resolve this question without resort to speculation. She explained the reason that her answer would require speculation. Service Connection Analysis After a review of all the evidence, the Board finds that service connection for a heart disability is not warranted under any theory of entitlement. The Veteran does not contend that the heart disability began in service, and the record does not support a claim for direct service connection. Although the possibility is noted in VA medical opinions, there is no evidence of a heart disability manifestation prior to the June 1976 back surgery, and the Veteran has written that the disability did not predate the surgery. Thus, the Board finds that the evidence of record does not support a claim of direct service connection. Thus, the Veteran's contention before the Board is limited: That the June 1976 back surgery caused the July 1976 myocardial infarction and that this was the first manifestation of a heart disability. It is not in dispute that the Veteran has a current heart disability. The Board further finds that the weight of the evidence demonstrates that the service-connected low back disability in June 1976 did not proximately cause the myocardial infarction that occurred eight days later in July 1976. The Veteran has submitted substantial treatise and medical article evidence in support of his appeal. The Board has considered such evidence, and finds that the treatise evidence is less probative than the specific medical opinions provided by various VA physicians in this case because the opinions were based on a history more specific to this Veteran; the VA medical opinions of record directly address the fact and circumstances of the Veteran's appeal. The Veteran has highlighted medical evidence dated from around that time of the myocardial infarction. Although the meaning of July 1976 form written to excuse the Veteran from work is somewhat ambiguous, the July 1976 letter from Dr. GN is not. Although the Veteran contends that this letter imparts that the myocardial infarction was a complication of the back surgery, it instead means that recovery from back surgery was complicated by the myocardial infarction. That is a very different meaning. That is, this letter from the Dr. GN refers to difficulty caused to the recovery from surgery caused by the myocardial infarction; the doctors words do not mean that the back surgery had a role in causing the myocardial infarction. The Board is aware that in the May 2008 letter Dr. JK wrote that the July 1976 letter from Dr. GN indicated that the myocardial infarction occurred in the context of the surgery and seemed to provide support for the Veteran's contention. Dr. JK, however, was attempting to interpret the meaning of the words in the letter. The Board finds that a careful reading of the original letter provides a different meaning. Dr. JK does not have special expertise in the interpretation of the July 1976 letter. The Board is also aware that the March 1999 decision of the Board appears to have re- characterized the meaning of the July 1976 letter from Dr. GN, but this characterization by the Board at that time is not binding on the Board in this instant decision. As outlined above, returning to the original letter from Dr. GN, he noted that the Veteran experienced an "acute myocardial infarction complicating post-operative recovery." The Board finds that the changing of the meaning of this sentence to read that the Veteran had an acute myocardial infarction as a complication of the back surgery is inaccurate and not supported by the plain meaning of the original letter. The other evidence submitted in support of the contention on appeal by the Veteran indicates that the myocardial infarction followed the back surgery. This fact is not in dispute. The two events occurred close in time to each other. The Veteran has contended that this proximity in time evidences that the two are related. The Board finds this contention unpersuasive. The closeness in time raises a question as to whether the two events are related, but in itself does not provide proof that the two events are etiologically related. Evidence that events occurred close in time to each other is not positive evidence of nexus. In the three VA opinions of record, three different VA physicians provided opinions that the two events were not related. After reading the three medical opinions, the Board finds that they provide substantial probative evidence that the myocardial infarction was not caused by the back surgery. The three opinions, when considered together, answer the question on appeal and support that contention with adequate rationale. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). The Board notes that the underlying fact of the two events occurring is not in dispute, only whether there is a nexus between the two events. The Board has considered the Veteran's contentions. The Veteran has not been shown to possess the requisite medical training or credentials needed to render an opinion regarding the etiology of the myocardial infarction. Accordingly, his lay opinion does not constitute competent evidence and lacks probative value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). In the Board's judgment, the question before the Board is not a type of nexus question that can be answered by a layperson. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, while the Veteran is competent to report what comes to him through his senses, he does not have medical expertise to opine that a myocardial infarction is due to a back surgery. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In this case, he cannot provide a competent opinion regarding causation. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the claim for service connection for a heart disability, to include the residuals of a myocardial infarction claimed as secondary to surgery for a service-connected low back disorder, must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). ORDER Service connection for a heart disability, to include the residuals of a myocardial infarction claimed as secondary to surgery for a service-connected low back disorder, is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs