Citation Nr: 1032964 Decision Date: 09/01/10 Archive Date: 09/13/10 DOCKET NO. 03-33 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Attorney Virginia A. Girard- Brady WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from January 1972 to January 1974 in the U.S. Army, and later had unverified service in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from an April 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board remanded the Veteran's claim in March 2004 in order the schedule him for a Travel Board hearing. In March 2005, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing at the RO in Atlanta, Georgia. A transcript is of record in the claims file. In a May 2005 decision, the Board denied the Veteran's claim of entitlement to service connection for a heart disorder. The Veteran subsequently appealed this issue to the United States Court of Appeals for Veterans Claims (Court). While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision as to that issue and remand the Veteran's claim for readjudication. In a January 2006 Order, the Court granted the joint motion, vacated the Board's May 2005 decision as to this issue, and remanded the case to the Board for readjudication. This claim was again before the Board in June 2007, at which time the Board remanded the Veteran's claim for additional development. In a September 2008 decision, the Board denied entitlement to service connection for a heart disorder. The Veteran subsequently appealed the decision to the Court. While that case was pending at the Court, the Veteran's attorney and the VA Office of the General Counsel filed a joint motion to vacate the Board's decision and remand the Veteran's claim for readjudication. In a March 2010 Order, the Court granted the motion, vacated the Board's September 2008 decision, and remanded this case to the Board for readjudication. FINDINGS OF FACT The competent and probative evidence preponderates against a finding that the Veteran's heart disorder is due to any incident or event in active military service, and heart disease is not shown to have been manifested either in service or within one year after his separation from service. CONCLUSION OF LAW A heart disorder was not incurred in or aggravated by service, nor may heart disease be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his attorney 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 notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none. In July 2003 VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the April 2003 rating decision, October 2003 SOC, November 2003 SSOC and June 2008 SSOC explained the basis for the RO's action, and the SOC and SSOCs provided him with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his attorney has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in a July 2007 letter which VA sent to the Veteran. Moreover, the Board notes that the Veteran has been represented by counsel for several years, and therefore has been fully advised on the requirements to substantiate the pending claim. See, e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30 (2007) (Court was convinced that appellant and attorney had demonstrated actual knowledge of the information and evidence necessary to establish the claim). Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. II. Relevant Law, Factual Background, and Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303(a) (2009). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show 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). When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must (1) be medical evidence of a current disability; (2) 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. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Alternatively, service connection based on continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96; see Hickson, supra, at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). As provided by 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has stated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as cardiovascular disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309(a) (2009). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran's service treatment records (STRs) show that, when he was examined in October 1971 for enlistment in the Regular Army, his heart was reported as normal, and his chest X-ray was acceptable. June 1972 STRs show that he complained of substernal chest pain which was recurrent and came on when he exercised heavily. Blood pressure and heart examination were normal, and the clinical impression was benign chest pain. In December 1972, the Veteran complained of sharp pains just below his rib cage on the left side, when stretching or bending, and costochondritis was noted. A December 1973 medical examination in anticipation of his expiration of term of service shows that the Veteran's heart was normal on clinical evaluation, and a chest X-ray was negative. The report of an enlistment examination for the Army National Guard in March 1974 shows that his heart was normal, and a chest X-ray was negative for any abnormality. In his report of medical history, the Veteran denied any pain and pressure in his chest. VA outpatient records dated from January 2001 to December 2002 show the Veteran had a heart murmur that was very prominent. In June 2002, he was admitted to the hospital with complaints of chest pain. The impression was a small area of stress-induced ischemia involving the inferolateral wall and equivocally involving the anterior wall of the left ventricle. In July 2002 the Veteran underwent a cardiac catheterization. In a May 2003 written statement, J.L.-L., M.D., indicated that he had treated the Veteran for chest pains. He wrote that the Veteran had first experienced chest pain in 1972 while in service, when he had complained of stabbing chest pains which were exertional in nature, and that no evaluation was performed at that time. The doctor noted that a recent myocardial perfusion scan had been compatible with acute myocardial ischemia. Coronary arteriography revealed normal right coronary arteries, with no significant occlusive disease. Although the Veteran's coronary arteries were normal, his chest pains were highly suggestive of angina pectoris, and the possibility of coronary artery spasm could not be ruled out. He claimed that the pains he currently had were the same as in 1972. Taking that into consideration, Dr. L stated that the Veteran's present condition is related to the pains that he reported in 1972 in service. In private treatment records dated in July and August 2004, Dr. L-L indicated that the Veteran has coronary artery disease, peripheral vascular disease, hypertension, and hyperlipidemia, and that he has been a tobacco user. The Veteran had complaints of persistent angina despite medical therapy. VA treatment records show that in December 2004 the Veteran complained of a stabbing chest pain which lasted four to five minutes and was alleviated one and a half minutes after taking a nitroglycerin tablet. At a January 2005 VA cardiology consultation, a physical examination revealed an atrial gallop, a 1/6 early systolic ejection murmur, and possibly a subtle injection click. There was no diastolic flow, no ventricular gallop, and no rub. An EKG study revealed voltage criteria for left ventricular hypertrophy. The cardiologist felt that the Veteran had "very atypical" chest pain, and he did not think it was ischemic in nature. At his March 2005 hearing before the undersigned, the Veteran stated that he experienced chest pains in service which arose at any time, not just after physical activity. He testified that he continued to experience chest pains until his discharge in 1974, and that no tests were done in service to determine the cause of the chest pains. The Veteran said that, in the year following discharge, he had sought treatment, but he had later been unable to locate those records. Currently, he reported pains from once per month to three times per week. He stated that Dr. L-L told him his chest pains come from an enlarged heart and hypertension. At an August 2007 VA examination it was noted that in 2005 the Veteran underwent a stent placement in the right coronary artery. He denied ever having a heart attack and was on medication for hypertension, diabetes, and heart disease. He reported having chest pain and shortness of breath about twice weekly, relieved with one nitroglycerin tablet. He said that he had problems with lower extremity swelling and he denied chest pain, shortness of breath, swelling, or palpitation. The examiner reviewed the Veteran's claims file, including the service treatment records. The examiner indicated that Dr. L-L's opinion to the effect that the Veteran's episode of chest pain during service was likely angina pectoris was mere speculation, because there was not enough clinical evidence to reach such a conclusion. Concerning this, the Board notes that a "possible" connection or one based on "speculation" is too tenuous a basis on which to grant service connection. The reasonable-doubt doctrine requires that there be a "substantial" chance of an association and "one within the range of probability as distinguished from pure speculation or remote possibility." 38 C.F.R. § 3.102 (2009); see Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (evidence favorable to a claim that does little more than suggest a possibility that illness might have been caused by service incidents is insufficient to establish service connection). The examiner further opined that it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran has a currently diagnosed heart disorder but that it is less likely as not (less than a 50/50 degree of probability) that it was caused by, or a result of, an incident or event during his active military service. The examiner stated that this opinion is based upon the fact that the chest pain experienced by the Veteran during service was isolated and could have been due to anxiety, physical exertion, or other causes besides cardiac abnormality. The examiner further noted that there had been no indication of associated shortness of breath, pressure, sweating, or other symptoms typical of anginal pain. The examiner also noted that the Veteran had not complained of chest pain after his separation from active military service, until 2002. May 2009 VA cardiology treatment records indicate that the Veteran was feeling fine, and the treating cardiologist could elicit no cardiovascular symptoms. The Veteran was noted to still have a soft early injection murmur preceded by an ejection click, but there was no aortic insufficiency that could be heard. It was also noted that the Veteran had never had congestive heart failure. The Board notes that the VA treatment records were submitted after the Veteran's claim had been certified to the Board, and that therefore an SSOC was not issued. In general, an SSOC must be furnished to the appellant and his representative when additional pertinent evidence is received after an SOC is issued. 38 C.F.R. § 19.31. In the present case, the Board finds that the May 2009 treatment record is not pertinent to the issue of service connection, because the treating cardiologist did not express an opinion as to etiology or nexus to service, and the record already showed that the Veteran has a heart disorder. Therefore, it is not necessary to remand the claim for an SSOC on those recent treatment records. We note that, in our June 2007 remand, the Board indicated that the Veteran was to be scheduled for an examination with "an appropriate physician (e.g., a cardiologist)." The August 2007 VA examination was performed by a nurse practitioner, and the examination report was reviewed and co-signed by a physician. The Board notes that compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The March 2010 Joint Motion called into question the Board's acceptance of the August 2007 VA examination (described in the Joint Motion as having been performed in May 2008) as satisfying our request on remand. Admittedly, we had used the term "appropriate physician" in the June 2007 remand. However, as the Court has recognized, VA's regulation at 38 C.F.R. § 3.159(a)(1) provides that "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." A nurse practitioner is a person who, by definition, has "advanced education and clinical training in a specialized area of health[]care . . . [and] can diagnose, prescribe, and perform procedures." Cox v. Nicholson, 20 Vet. App. 563, 569 (2007), citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1294 (30th ed. 2003). The Board accepts the nurse practitioner's competence in this case, and neither the appellant nor his attorney has advanced any cogent argument to the contrary. In this regard, the Board finds that the August 2007 examination was sufficient for compliance with the June 2007 remand because the examination was thorough and included discussion of the Veteran's history and review of numerous clinical test results, the examiner supplied a detailed rationale for the opinion, and the examination report was reviewed by a medical doctor who was a Primary Care Manager at the VA medical facility. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008). The Board notes that Dr. L-L opined that the Veteran's present heart condition is related to his 1972 chest pains, whereas the August 2007 VA examiner found that such a relationship is unlikely. Where the record contains both positive and negative evidence including addressing whether the veteran's claimed condition is related to military service, it is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Board finds that the VA examiner's opinion is more persuasive. The Court of Appeals for Veterans Claims has held that "most of the probative value of a medical opinion comes from its reasoning", and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Dr. L-L noted that the basis for his opinion was that the Veteran was experiencing the same pain as in 1972. However, he also noted that no evaluation had been performed in 1972, and he did not offer further explanation of how he reached his opinion. In contrast, the VA examiner noted the other possible causes of the 1972 chest pain, opined that it was an isolated incident, and observed the Veteran had not complained of chest pain for nearly 30 years after service. That gap of nearly 30 years between the Veteran's military service and the first time he is shown by the documentary record to have been seen for his heart disorder also militates against a finding that he suffered from a chronic cardiovascular disease in service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (to the effect that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). We recognize the sincerity of the arguments advanced by the Veteran that his heart disorder is service connected. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran'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. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra; Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, supra. However, a heart disorder requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. Since the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a heart disorder, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a heart disorder is denied. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs