Citation Nr: 1032237 Decision Date: 08/26/10 Archive Date: 09/01/10 DOCKET NO. 08-05 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to an increased evaluation in excess of 20 percent for residuals of a lumbar spine injury with degenerative joint and disc disease. ATTORNEY FOR THE BOARD Christine C. Kung, Associate Counsel INTRODUCTION 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). The Veteran served on active duty from June 1947 to June 1950, from June 1950 to September 1953, and from December 1953 to October 1967. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas (RO). In an August 2009 decision, the Board reopened the Veteran's claim of entitlement to service connection for a heart disability and remanded the case to the RO for further development. The case is once again before the Board. Unfortunately, the Board finds that an additional remand is necessary prior to review of the Veteran's claim for an increased evaluation in excess of 20 percent for residuals of a lumbar spine injury with degenerative joint and disc disease. The issue of entitlement to an increased evaluation in excess of 20 percent for residuals of a lumbar spine injury with degenerative disc disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's heart disability, to include cardiovascular disease with left ventricular hypertrophy and coronary artery disease, is not etiologically related to active service. CONCLUSION OF LAW A heart disability was not incurred in or aggravated by active service and arteriosclerosis may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) 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). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In a January 2007 letter, VA informed the Veteran of the evidence necessary to substantiate his claim, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. The January 2007 letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA and private treatment records, and VA examinations have been associated with the claims file. The Board notes specifically that the Veteran was afforded a VA examination in November 2009. 38 C.F.R. § 3.159(c)(4) (2009). 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 set forth in greater detail below, the Board finds that the VA examination obtained in this case is adequate as it is predicated on a review of the claims folder and medical records contained therein; contains a description of the history of the disability at issue; documents and considers the Veteran's complaints and symptoms; and contains a clear medical opinion with a discussion of the reasons and bases for the opinion rendered. 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). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. The Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record is complete and the case is ready for review. B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection may 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) (2009). In addition, certain chronic diseases, including hypertension and arteriosclerosis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The service treatment records from the Veteran's last period of service show that on separation, the Veteran had an electrocardiogram (EKG) which revealed a first degree heart block and left axis deviation. The Veteran was thereafter provided further cardiac evaluation. The examiner noted the abnormal EKG findings; however, the Veteran's history and current physical examination did not show cardiac disease. The examiner indicated that the findings on the EKG were probably an abnormality, but those findings were also recognized as a normal variant. During a May 1968 VA examination, the record was reviewed. The VA examiner indicated that at the time of the Veteran's discharge physical, a routine EKG was done showing left axis deviation and borderline PR interval of 0.21 seconds in lead II. A consultative cardiac evaluation at that time did not demonstrate any clinical evidence of heart disease and the Veteran was not given a diagnosis. A physical examination and diagnostic testing were completed. A chest x-ray was normal and an EKG again showed left axis deviation and the PR interval was 0.21 seconds in lead II. The VA examiner concluded that there was no clinical evidence of cardiac disease and that the EKG was equivocal and of no clinical significance at that time. Private treatment records dated in 2002 noted that the Veteran had diagnosed coronary artery disease with a history of old myocardial infarction diagnosed by EKG. The Veteran reported a history of prior myocardial infarction in January 2004. He had occasional anginal symptoms and dyspnea on exertion. The Veteran underwent an echocardiography at that time to define his cardiac structure and function. In February 2004, the Veteran was diagnosed with mild atherosclerotic disease bilaterally. VA treatment records dated from 2007 to 2008 show that the Veteran had diagnoses of coronary artery disease and hypertension. A November 2009 VA examination included a discussion of the Veteran's medical history. The VA examiner noted that the Veteran had a mildly abnormal EKG at the time of his separation examination in 1967 with evidence of first-degree AV block and left axis deviation. He was evaluated by a medical consultant who felt that the EKG abnormality was essentially a normal variant. The VA examiner noted that the Veteran was a poor historian, and much of his history was given by his wife. They reported that the Veteran was hospitalized at Baptist Medical Center 14 or 15 years prior, at which time an EKG was performed and was abnormal. The Veteran's wife stated that they were told that the posterior aspect of the Veteran's heart was damaged from a heart attack suggesting coronary artery disease. The Veteran never underwent an angiogram per his reported history. He had no history of surgical procedures on his heart. The condition had remained fairly stable since that time and had been managed with medication. The Veteran had a 30-year history of hypertension and a history of cerebrovascular disease with a stroke in 2002. The Veteran also had a history of abdominal aortic aneurysm. The VA examiner stated that the records suggest that his vascular disease was typical of an arterial sclerotic process for all of these conditions. The Veteran was also noted to have a 50-year smoking history. A physical examination was completed. The VA examiner also noted that the claims file and VA electronic medical records were reviewed. He stated that the Veteran had a cardiac evaluation in April 1967 for an abnormal EKG. He gave a history of atypical chest pain which was not cardiac in nature. He was felt to have an abnormal EKG consistent with a normal variant EKG for a Veteran of this age. A chest x-ray was normal at that time. There was no history of chest pain at the time of the Veteran's exit from the military. No sustained hypertension was noted at the time of exit. A VA examination completed in 1968 revealed similar EKG findings with a negative chest x-ray. Vital signs were stable. A review of the file reveals that an EKG in 2002 suggested inferolateral ischemic changes on an EKG at that time. An echocardiogram in 2004 revealed left ventricular hypertrophy with mild valvular heart disease. There was evidence of an abdominal aortic aneurysm noted. A review of the medical records suggested hypertension for several years. The records also suggested coronary artery disease with a previous myocardial infarction. An EKG completed that day revealed a poor technical EKG. He appeared to have a sinus rhythm with occasional skipped beat. The Veteran was diagnosed with hypertensive cardiovascular disease with left ventricular hypertrophy per echocardiogram as well as coronary artery disease, historically. The November 2009 VA examiner stated that the Veteran's present heart complaints seemed to be related to his long-standing hypertension. He had echo evidence of left ventricular hypertrophy which would be evidence of hypertensive vascular disease. A single EKG in the file did suggest inferolateral ischemia on an EKG which could be consistent with coronary artery disease. A review of the Veteran's VA medical records as well as a review of the claims file suggested a history of coronary artery disease, although no records confirm any hospitalization or other studies regarding coronary artery disease. The VA examiner opined that the Veteran's present heart disease was less likely than not related to any cardiac complaints at the time of the Veteran's separation in 1967 or within one year of his separation from service. The first-degree AV block could be found in normal young active adults, and this was felt to be the case with this Veteran as there were no confirmed problems with his heart at that time based on historical review as well as a review of the medical consult in the claims file. The VA examiner indicated that several years passed before heart-related issues were found, and this provided additional evidence against finding any cardiac condition in service. The VA examiner stated that the first-degree AV block was strictly an electrical problem and was not related to any present cardiac-related diagnosis. Left axis deviation was typically just the position of the heart. After reviewing the conditions that could cause left axis deviation, the VA examiner felt that this was just a normal variant as well. This was based on a review of medical records in 1967, as there was no other explanation for the axis deviation. The Veteran had a long-standing 30-year history of hypertension per his wife's report. The VA examiner stated that he had reviewed service treatment records and found no evidence of persistent hypertension. He did not feel that the Veteran had persistent hypertension while in the military, and persistent hypertension was not found at the time of the Veteran's separation examination, or during a subsequent VA examination in 1968. The VA examiner stated that hypertension could lead to left ventricular hypertrophy which was noted on the Veteran's echocardiogram. He stated that it may also lead to the clinical diagnosis of coronary artery disease. The VA examiner found that the Veteran's arteriosclerosis was likely related to the Veteran's long-term hypertension as well as his 50-year smoking history. The VA examiner stated, in conclusion, that the abnormal EKG noted at the time of the Veteran's exit from the military was not indicative of any underlying cardiac disease at that time. The first degree AV block was an electrical problem and was likely intrinsic to the Veteran. There was no evidence of cardiac disease at that time to cause the electrical abnormality. The evidence was against finding that the Veteran had any cardiac- related illness and this was noted at the time of the Veteran's separation with his medical consultation. Additional evidence supporting this conclusion was the fact that the Veteran was without cardiac-related complaints for several years. The absence of heart-related complaints during that period of time would be evidence against finding that any underlying heart problems existed at that time. The Veteran's left ventricular hypertrophy was likely related to his long-standing hypertension. His coronary artery disease was likely multifactoral in nature but the VA examiner indicated that it was likely related to the Veteran's long-standing hypertension and smoking history as discussed above. VA treatment records and a VA examination show that the Veteran has currently diagnosed cardiovascular disease with left ventricular hypertrophy and coronary artery disease. However, the Veteran's diagnosed disabilities are not shown to have been incurred in service. The earliest evidence of a diagnosed heart disability of record was approximately 27 or 28 years after the Veteran's separation from service per the Veteran and his wife's report during his most recent VA examination. The earliest evidence of records showing a diagnosed heart disability was in 2002. There was no evidence of heart disease on a VA examination completed in May 1968, shortly after the Veteran's separation from service. There is no evidence of record which links the Veteran's current diagnoses of cardiovascular disease with left ventricular hypertrophy and coronary artery disease to service. According to the United States Court of Appeals for Veterans Claims (CAVC), "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. In this case, the Board finds that the November 2009 VA opinion provides the most probative evidence of record with respect to the Veteran's current diagnosis and the etiology of that diagnosis. The medical evidence reviewed and discussed by the examiner was factually accurate. Based on his careful review of the medical evidence, to include service treatment records and post-service medical evidence, and based on his own expertise, the VA examiner provided a fully articulated opinion and provided sound reasoning for his conclusions. The VA examiner found, based on a review of service treatment records, that the Veteran had no evidence of a cardiac-related illness, or hypertension in service. Abnormal findings shown on an EKG in service were deemed to be a normal variant and were not shown to be related to a current heart disability. The VA examiner found that cardiovascular disease with left ventricular hypertrophy and coronary artery disease were likely related to the Veteran's long history of hypertension and his history of smoking, and were not related to service. The VA examiner also noted that there was no evidence of sustained hypertension in service. Based on the November 2009 VA opinion, the Board finds that service connection for a heart disability is not warranted. Finally, to the extent that the Veteran asserts a nexus between any current heart disease and his military service, the Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a) (2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, the Veteran's statements in that regard are not probative in this case. C. Conclusion Although the Veteran has diagnosed cardiovascular disease with left ventricular hypertrophy and coronary artery disease; such disabilities were not incurred or aggravated in service; hypertension and arteriosclerosis did not manifest within a year of the Veteran's separation from service; and no nexus has been established between the Veteran's current disabilities and his military service. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran has a heart condition etiologically related to active service. ORDER Service connection for a heart disability is denied. REMAND The Board remanded the case in August 2009 for a VA examination to address the severity of the Veteran's service-connected residuals of a lumbar spine injury with degenerative joint and disc disease. See 38 C.F.R. § 3.159(c)(4)(i) (2009). The remand order noted that, in providing an opinion, the VA examiner should assess if the Veteran has any neurological manifestations to include sciatica as well as any bowel and bladder complaints. If so, these neurological manifestations were to be identified and the severity thereof described in detail. The VA examiner was specifically asked to comment on whether the urinary incontinence reported in April 2008 is related to the low back disability in any way. The Veteran was afforded a VA examination in November 2009. The November 2009 VA examiner did address the severity of the Veteran's back disability to the extent possible, noting that examination of the back was not meaningful because the Veteran was not able to stand without help. It was noted that the Veteran's disability was mainly due to his left-sided cardiovascular accident. The VA examiner also noted that the Veteran had a history of right-sided sciatica that disappeared after his stroke, and that he had no control of his bladder and intermittent leakage of the bowels. Although the VA examiner indicated that the Veteran's neurologic deficits on the left side were from the Veteran's stroke and not his low back, the VA examiner failed to provide an opinion as to whether the Veteran's bowel and bladder dysfunction were related to his service- connected lumbar spine disability with degenerative joint and disc disease as specifically requested by the Board in its prior remand. The Board finds, therefore, that a remand for a supplemental opinion is necessary. See Stegall v. West, 11 Vet. App. 268, 270 (1998), (holding that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. The RO/AMC should refer the case to an appropriate VA examiner for a supplemental medical opinion to determine if the Veteran's bowel and/or bladder dysfunction are related to his service-connected low back disability. The claims folder must be made available to the examiner for review. The VA examiner should state whether the Veteran's bowel and/or bladder dysfunction are in any way related to his service-connected lumbar spine disability with degenerative joint and disc disease. The VA examiner must provide a complete rationale for his or her opinion. 2. After all development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefits sought are not granted, the RO/AMC should furnish the Veteran with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs