Citation Nr: 1032576 Decision Date: 08/30/10 Archive Date: 09/08/10 DOCKET NO. 07-29 009 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a heart disability to include an irregular heartbeat with possible mitral valve prolapse. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD T.S. Willie, Associate Counsel INTRODUCTION The RO has reported that the appellant served on active duty from June 1977 to November 1977 and from May 1986 to June 2006. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2007 rating decision, by the Reno, Nevada, Regional Office (RO). This case was remanded by the Board in March 2009 for further development. The Board notes that the remand instructed that the appellant be afforded a VA examination by a physician. The record shows that in June 2009 the appellant was afforded a VA compensation and pension examination. The examination and opinion were formed from a collaboration with a nurse practitioner and a physician. The Board notes that the examination report was co-signed by the medical doctor and the such constitutes substantial compliance. The Board further notes that the AOJ was instructed to verify the appellant's periods of service. Although the AOJ did not comply with this request, the appellant's second period of service has been verified by the AOJ. As such, the Board finds that the noncompliance was harmless. FINDING OF FACT The appellant does not have a heart disability to include an irregular heartbeat with possible mitral valve prolapse. CONCLUSION OF LAW A heart disability to include an irregular heartbeat with possible mitral valve prolapse was not incurred in or aggravated by service and cardiovascular renal disease may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113,1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Prinicpi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial disability-rating and effective-date elements of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the originating agency provided the appellant with the notice required under VCAA by letter dated in July 2006. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2009). In connection with the current appeal, appropriate examinations have been conducted and available service records have been obtained. We also note that the VA examination was adequate. The examiner reviewed the history, established clinical findings and presented reasons for the opinions. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim. The evidence of record provides sufficient information to adequately evaluate the claim, and the Board is not aware of the existence of any additional relevant evidence which has not been obtained. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Accordingly, the Board will address the merits of the claim. Factual Summary Service treatment records show the chest, vascular system and heart were reported normal in March 1977, May 1983, May 1986 and June 1990. The appellant denied pain or pressure in the chest, heart trouble and palpitation or pounding chest but reported shortness of breath in March 1977. The appellant denied pain or pressure in the chest, shortness of breath, heart trouble and palpitation or pounding chest in May 1983 and June 1990. Clear chest and regular sinus rhythm were shown in April 1995. In May 1995, periodic palpitations complaints of shortness of breath were noted. The appellant reported that she felt like her heart raced at times. She also reported that she had been told that she had a heart murmur in the past. The examiner noted that such was all compatible with mitral valve prolapse. The examiner noted that when he listened to the appellant's heart it sounded like that was what was potentially going on. In late May 1995, a three week history of intermittent episode of palpitations was noted. Mild dizziness and shortness of breath symptoms were also noted. The appellant denied chest pain. Arrythmia questionable etiology and possible MVP was assessed. In July 1995, it was noted that the appellant developed intermittent episodes of palpitations in the spring of 1995. Symptoms of mild dizziness, mild shortness of breath and no chest pain were noted. Supraventicular dysrythmia and possible MVP was noted. The appellant was given a provisional diagnosis of mitral valve prolapse in August 1995. However, no evidence of mitral prolapse and normal 2d ECHO/DOPPLER study except for TR was shown upon examination. In a November 1995 examination, the chest and heart were reported as normal. The appellant denied a history of shortness of breath, heart trouble and chest pain. She reported a history of palpitation or pounding heart. In 1996, the appellant reported that her heart was not beating right and that it was maybe from "kinalog shot." Examination in November 1999 revealed normal examination of the chest. The heart, mediatinum, hila and pulmonary vasculature were normal. In a 2003 examination, the appellant reported "heart skipping beats." A history of heart murmur was reported. In early April 2003, the appellant reported that she had an anthrax shot in 2001 and that she started having palpitations thereafter. She reported having palpations every two to three months. Examination revealed regular rhythm and rate, no rub, murmur or gallop. In mid April 2003, palpitation causing shortness of breath was noted. An impression of cardiac chambers appear normal in size and left ventricular systolic function also normal was noted. Examination in May 2003 revealed regular rate and rhythm without murmurs, rubs, or gallops. In October 2003, the appellant reported a history of irregular heartbeat. Heart fluttering and severe brief palpitations were noted in June 2004. In October 2004, the appellant reported a history of irregular heartbeat. Unremarkable chest was shown in August 2005. Examination in December 2005 showed regular heart rate and rhythm without murmur. Also that month, the appellant was treated for trauma. The cardiomediatinal contour was within normal limits. An impression was given of mild hypoinflation without other evidence for acute cardiopulmonary disease. Mid dyslipidemia was noted in August 2006. At that time, examination showed no murmur and one or two extra beats during the examination of the chest. The appellant was afforded a VA compensation and pension examination in January 2007. During this examination, it was noted that in 1995 the appellant had her first episode of heart palpitation with possible mitral valve prolapse and that during the palpations she would also experience shortness of breath. She reported that she believed that the palpations started occurring after she received her anthrax injections. The appellant estimated that she had anywhere from 1 to 30 episodes palpations per month. She reported that it seemed like her palpations have diminished some since she retired. The appellant reported intermittent palpitations and denied chest pain, shortness of breath and murmurs. The examiner noted that the appellant's heart rate was regular at 74 beats per minute, and that there were no murmurs, rubs or gallops. The examiner further noted that the EKG revealed normal sinus rhythm and there was no indication for further testing at that time. An interpretation of palpitations was noted in August 2007. Also that month, it was noted that EKG did not show any arrhythmia and there was no significant abnormality. The appellant denied chest pain but complained of some palpitations that occur once in awhile. Examination showed heart was regular, rate and rhythm, and no murmur. No hypertension was noted. In late August 2007, normal sinus and normal Holter was noted. In October 2007, examination revealed normal lungs/heart. Examination in December 2007 showed heart regular, rate and rhythm, and no murmur. The appellant denied chest pain and shortness of breath. Examination in early January 2008 showed regular rate and rhythm, and no murmur. In the January 2008 VA compensation and pension examination, no history of congestive heart failure or angina was noted. Examination revealed normal palpation and normal inspection. A history of intermittent palpitations was noted. It was further noted that no heart abnormality had been diagnosed. The appellant was afforded a VA compensation and pension examination in June 2009. Examination revealed no evidence of mitral valve prolapse and normal left ventricular function. It was noted that the appellant was treated for hyperlipidemia. The examiner noted that the appellant has not been diagnosed with mitral valve prolapse evidenced by ECHO results. ECHO dated in June 2009 showed mild mitral valve regurgitation. ECHO LV ejection fraction was 57%. The examiner noted that the Holter monitor testing in August 2008 was reviewed and that the results were normal. The examiner noted that there were three isolated supraventricular beats noted but such was a normal variant. The examiner opined that there is no anatomic evidence of mitral valve prolapse. He noted that palpitations, extra systoles, can occur as a normal variant and are sometimes aggravated by medications, caffeine or stress. The examiner noted that the appellant has normal variation and that everyone may feel extra systoles on occasion. Legal Criteria Veterans are entitled to compensation from the DVA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (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). Certain chronic diseases, such as cardiovascular renal disease, may be service connected if manifested to a degree of 10 percent disabling or more within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309 (2009). For a 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). A claim for service connection generally requires competent evidence of a current disability; proof as to incurrence or aggravation of a disease or injury in service, as provided by either lay or medical evidence, as the situation dictates; and competent evidence as to a nexus between the in-service injury or disease and the current disability. Cohen v. Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet. App. 465 (1995). The Board notes that the provisions of 38 U.S.C.A. § 1154(b) do not apply, as it has not been claimed that the disability was incurred while engaging in combat. Analysis The appellant has appealed the denial of service connection for a heart disability to include an irregular heartbeat with possible mitral valve prolapse. Based on review of the evidence, the Board finds that service connection is not warranted. In this regard, the Board notes that the appellant seeks service connection for a heart disability but there is no reliable evidence of a heart disability due to disease or injury. For veterans, basic entitlement to disability compensation derives from two statutes, 38 U.S.C. §§ 1110 and 1131- - the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation, beginning with the words: "For disability resulting from personal injury suffered of disease contracted in the line of duty. . . ." 38 U.S.C. §§ 1110, 1131 (2009). Thus, in order for a veteran to qualify for entitlement to compensation under those statutes, the veteran must prove the existence of a disability, and one that has resulted from a disease or injury that occurred in the line of duty. Sanchez- Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, there is no reliable evidence of any current heart disability that is due to a disease or injury. In reaching this determination, the Board notes that examinations in March 1977, May 1983, May 1986 and June 1990 revealed that the chest, vascular system and heart were normal. Furthermore, although the appellant reported a history of an irregular heartbeat, she denied pain or pressure in the chest, shortness of breath, heart trouble and palpitation or pounding chest in May 1983 and June 1990. No evidence of mitral prolapse and normal 2d ECHO/DOPPLER study except for TR was shown upon examination in August 1995. Examination in November 1999 revealed normal examination of the chest. The heart, mediatinum, hila and pulmonary vasculature were also normal. Examination in April 2003 noted cardiac chambers appeared normal in size and left ventricular systolic function was also normal. Examination in December 2005 showed the cardiomediatinal contour was within normal limits. An impression was given of mild hypoinflation without other evidence for acute cardiopulmonary disease. The January 2007 VA examiner noted that the appellant's heart rate was regular at 74 beats per minute, and that there were no murmurs, rubs or gallops. The examiner further noted that the EKG revealed normal sinus rhythm and there was no indication for further testing at that time. In August 2007, EKG did not show any arrhythmia and there was no significant abnormality. In January 2008, it was noted that no heart abnormality had been diagnosed. Examination in June 2009 revealed no evidence of mitral valve prolapse and normal left ventricular function. The examiner opined that there is no anatomic evidence of mitral valve prolapse. He noted that palpitations, extra systoles, can occur as a normal variant and are sometimes aggravated by medications, caffeine or stress. The examiner further noted that the appellant has normal variation and that everyone may feel extra systoles on occasion. To the extent that the appellant has been diagnosed with hyperlipidemia, the Board notes that VA has noted in public documents that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). As such, hyperlipidemia is not a disability for VA compensation purposes. The Board has considered the various statements made by the appellant. The appellant has reported palpitations and a history of an irregular heartbeat. The Board notes that the appellant's lay statements may be competent 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. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Although the appellant has asserted palpitations, the Board notes that a symptom, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disease or injury. Without a pathology to which the appellant's symptoms can be attributed, there is no basis to grant service connection. See Sanchez-Benitez, supra. The Board further notes that, although the appellant is competent to report palpitations, a diagnosis of a heart disability is far too complex a medical question to lend itself to the opinion of a layperson. See Jandreau, supra (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). In reaching this determination, the Board is fully aware of the in-service and post service complaints. This constitutes positive evidence. The Board has also considered the complaints in the context of chronicity and continuity. We also note that one examiner reported that some symptoms could be compatible with mitral valve prolapse; and that there was possible mitral valve prolapse. However, the fact that mitral valve prolapse is suspected or that she reported a past history of a heart murmur is just some of the evidence that must be considered. We conclude that when the more thorough testing was accomplished, the determination that there was no cardiovascular pathology is far more probative than a suspicion that pathology may exist. Such testing included normal EKGs, normal Holter monitor results and findings of a regular rate and rhythm without murmur. Neither the ejection fraction nor the results of the Echo were interpreted as showing pathology, to include the report of regurgitation. Rather the results were indicative of a normal variation. The Board has no reason to doubt the appellant's reports of palpitations; however, the more probative evidence of record does not show her symptoms are due to an underlying disease or injury as a result of any active service. Without competent evidence of current disability related to a disease or injury, service connection cannot be granted. This lack of evidence of underlying pathology also weighs against a finding of either chronicity or continuity. The Court has clearly established that in the absence of current disability due to disease or injury there can be no valid claim. The allegation of continuity fades into insignificance in the absence of disability due to a disease or injury. The preponderance of the evidence is against the claim for service connection. Because there is no approximate balance of positive and negative evidence, the rule affording the veteran the benefit of the doubt does not apply. 38 U.S.C.A. § 5107(b) (West 2002). See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). See also 38 C.F.R. § 3.102 (2009). Therefore, the preponderance of the evidence is against service connection for cause of death. As there is not an approximate balance of positive and negative evidence regarding the merits of the appellant's claim that would give rise to a reasonable doubt in favor of the appellant, the benefit o the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a heart disability to include an irregular heartbeat with possible mitral valve prolapse is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs