Citation Nr: 1040802 Decision Date: 10/29/10 Archive Date: 11/04/10 DOCKET NO. 08-29 842A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disorder, to include a rheumatic heart condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeanne Schlegel, Counsel INTRODUCTION The Veteran served on active duty from February 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2010, at which time the service connection claim for a heart disorder was reopened and remanded for additional development. A review of the file reflects that there has been substantial compliance with the actions requested in that Remand and the case has returned to the Board for appellate consideration. See also D'Aries v. Peake, 22 Vet. App. 97 (2008) (finding that only substantial compliance, rather than strict compliance, with the terms of a Board's remand directives is required). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A preexisting heart disorder was not noted at entry into service. However, there is clear and unmistakable evidence the Veteran had a preexisting heart disorder prior to induction into service in February 1942. 2. There is clear and unmistakable evidence the preexisting heart disorder was not permanently aggravated during service beyond its natural progression by or as a result of service. CONCLUSION OF LAW A heart disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 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). The RO informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claim in a letters dated in April 2007 and June 2010, wherein he was advised of the provisions relating to the VCAA. Specifically, the Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to the VA. In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, this information must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The Veteran was also provided with notice of the type of evidence necessary to establish a disability rating or effective date as was discussed in the Dingess case in the April 2007 letter. Subsequent adjudication of the claim on appeal was undertaken in Supplemental Statements of the Case (SSOC) issued in November 2009, March 2010, and August 2010. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the claim on appeal has been obtained. The Veteran's service treatment records (STRs) and post-service VA and private treatment records were obtained. The Veteran was afforded a VA examination in 2010 in connection with the service connection claim for a heart disorder, and there has been no assertion by the Veteran or his representative that the examination is inadequate in any way. Accordingly, the Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the VCAA and that no further actions need be undertaken on the Veteran's behalf. See 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). The Board finds that as to the claim being decided herein on appeal, all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Significantly, the Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Factual Background The Veteran's STRs include an induction examination report of February 1942 reflecting that an evaluation of the cardiovascular system was normal with functional tachycardia. When evaluated in November 1942, a systolic murmur was noted and the history indicated that the Veteran had been treated for rheumatic fever when he was 12 years old. The discharge examination report of November 1945 revealed a history of rheumatic fever, which existed prior to service, with dyspnea and palpitation on exertion. It was noted that the Veteran had been on limited service because of his heart. A service connection claim for a heart condition was originally denied in a March 1946 rating action based on the explanation that a heart condition was not found on physical examination at the time of discharge from service. The Veteran filed to reopen the claim in April 2007. VA medical records dated from 2003 to 2007 include an entry dated in May 2003 noting a medical history of coronary artery disease (CAD) and hypertension. The Veteran denied having chest pain or shortness of breath. Examination of the heart revealed S1 and S2 - normal; and a regular heart rate and rhythm with no murmurs. The assessments included hypertension. When evaluated again in January and December 2005, the Veteran denied having palpitations, chest pain or shortness of breath. Examinations of the heart revealed normal S1 and S2 with no murmurs. The assessments included hypertension/heart murmur. When evaluated in December 2006 a heart murmur was noted. The impressions included hypertension and mitral valve disorder. In a lay statement provided by the Veteran dated in June 2007, he reported that he was told by a battalion surgeon during service that he had a rheumatic heart condition. The file includes private medical records of Dr. B. dated from 1993 to 2007. A July 1999 record appears to include notations of mitral regurgitation, aortic stenosis and aortic insufficiency. A rheumatology consultation report of November 2004 indicates that the Veteran had a history of a polymyalgia rheumatica and diagnosed in April 1999, and cardiac murmur for which he took prophylactic antibiotics. Cardiac examination revealed regular heart rate and rhythm with III/VI holosystolic murmur. X-ray films of the chest taken in June 2005 revealed no acute cardiopulmonary disease. An August 2005 ultrasound showed minimal scattered bilateral atherosclerotic plaque without evidence of hemodynamically significant carotid stenosis. On comprehensive examination conducted in June 2006, a systolic murmur was noted and the diagnoses included mitral regurgitation and mild moderate aortic stenosis and aortic insufficiency. An echocardiogram was conducted in August 2006 which revealed diastolic dysfunction, mild aortic stenosis and mild tricuspid valve regurgitation. When evaluated by Dr. L. in February 2007, heart rate and rhythm were regular without any evidence of murmurs. In a lay statement dated in March 2008, the Veteran indicated that he had a rheumatic heart condition prior to service, but was drafted in spite of this. He states that he served on duty as a lithographic draftsman and that the events of his service period included the invasion of North Africa and Southern France. Also on file is a private medical statement of Dr. B. dated in October 2008, indicating that the Veteran's medical conditions included moderate aortic stenosis; hypertension and transient ischemic attacks. Dr. B. noted that the Veteran's cardiac status had been declining over the past few years and that he might require aortic valve replacement in the future. A VA examination was conducted in July 2010 and the claims folder was reviewed. The Veteran gave a history of a rheumatic heart disorder since 1942, which he reported was not treated in service. The report indicated that the Veteran had a history of rheumatic fever, valvular heart disease and hypertension. Cardiac examination revealed no evidence of congestive heart failure of pulmonary hypertension. S1 and S2 heart sounds were present as was a murmur. Aortic stenosis associated with valvular heart disease was diagnosed. The examiner opined that there was clear and unmistakable evidence that aortic stenosis pre-existed service, as supported by STRs which reflected that the Veteran had a history of rheumatic fever at age 12 and evidence of a murmur in the aortic and mitral valve area in 1942. It was observed that a complication of rheumatic heart disease was valvular heart disease, aortic or mitral. The examiner explained that the Veteran's heart disease was not permanently aggravated during service, as supported by the absence of any complaints or findings of symptomatology during service and shortly thereafter. The examiner pointed out that the earliest private medical record documenting cardiac symptomatology was dated in 1999, at which time mitral regurgitation, aortic stenosis and aortic insufficiency were shown. Analysis The Veteran claims that he had a rheumatic heart condition prior to entering service, which was chronically aggravated in or as a result of service. Generally, in order to establish direct service connection for a claimed disorder, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in- service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain diseases, including cardiovascular-renal disease, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition under section 1111 for conditions not noted at entrance to service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. Where the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094-1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000). A current heart disorder is shown by virtue of diagnoses of aortic stenosis and valvular heart disease made upon VA examination of July 2010. Consequently, the determinative issue is whether any of these are attributable to the Veteran's military service, by way of incurrence or aggravation. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Veteran and his representative maintain that a preexisting heart disorder was aggravated during the Veteran's period of military service from February 1942 to November 1945, and as such the claim should be adjudicated under the presumption of aggravation rule discussed in 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. As an initial matter, the presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this respect, the Veteran's reported preexisting heart disorder was not "noted" on the February 1942 induction examination report. However, in November 1942, on examination the Veteran provided a history of having rheumatic fever at age 12 and a systolic murmur was noted. The file also contains a medical opinion offered by a VA examiner in 2010 and based on a thorough review of the Veteran's medical history and evidence, to the effect that aortic stenosis clearly and unmistakably existed prior to his entrance into service, as supported by the aforementioned history and findings made in November 1942. Consequently, the Board finds all of the medical and lay evidence, taken together, provides clear and unmistakable evidence that a heart condition preexisted service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The Board further finds clear and unmistakable evidence that the Veteran's preexisting heart condition was not chronically aggravated in or as a result of service. In support of this finding the Board points to the complete absence of documentation of any clinical findings, aside from the murmur noted in November 1942, throughout the remainder of service or shown on the 1945 separation examination report. The Board acknowledges that the 1945 separation report noted that the Veteran had dyspnea and palpitation on exertion and had been on limited service because of his heart. However, the fact remains that no clinical abnormality aside from the murmur was shown at any point during service, nor would such a notation in and of itself represent clear and unmistakable evidence that the Veteran's preexisting heart condition was chronically aggravated in or as a result of service. Post-service there is an absence of any lay or clinical evidence of chronic or continuous cardiac symptomatology from December 1945, forward; in fact, the first post-service clinical indications of a cardiac disorder were shown in 1999, almost 55 years after the Veteran's discharge from service. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally, the record contains one competent medical opinion addressing the matter of aggravation of the pre-existing rheumatic heart condition. The opinion, provided by a VA examiner in 2010, was based on a full physical examination of the Veteran and a comprehensive review of his medical history and records. The examiner opined that the Veteran's heart disease was not permanently aggravated during service, as supported by the absence of any complaints or findings of symptomatology during service and shortly thereafter, and the fact that the earliest private medical record documenting cardiac symptomatology was dated in 1999, decades after the Veteran's discharge from service. The file contains no professional medical opinion to the contrary and the Veteran has not provided any competent medical evidence to diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). In light of the evidence of record, the Board finds that the Veteran's claimed heart condition is shown by clear and unmistakable evidence to have existed prior to service as well as clear and unmistakable evidence that the preexisting heart disorder was not permanently aggravated during service beyond its natural progression by or as a result of service. Accordingly, the Board finds that the presumption of aggravation does not attach. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.303; See Wagner, 370 F.3d at 1096. In making the above determinations, the Board has carefully considered the Veteran's lay assertions, generally contending that his claimed heart condition was chronically aggravated due to service. Although the Veteran's lay assertions are generally considered competent to identify symptomatology, he has not been shown to possess the requisite medical training or credentials needed to render an opinion regarding the question of whether his claimed heart condition was aggravated beyond the natural progression by or as a result of service. Essentially, it is beyond the Veteran's competence as a lay person to render such a determination. Therefore, his lay opinion in this regard does not constitute competent medical evidence in support of his claim and lacks probative value with regard to the issue on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For the foregoing reasons, the Board finds that the preponderance of the evidence is against the award of service connection for the Veteran's heart disorder; it follows that the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). As such, the Veteran's claim is denied. ORDER Entitlement to service connection for a heart disorder, to include a rheumatic heart condition, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs