Citation Nr: 1042425 Decision Date: 11/10/10 Archive Date: 11/18/10 DOCKET NO. 04-43 154 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for coronary artery disease with myocardial infarction. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1955 to March 1958, and had subsequent service in the Reserves. This matter came to the Board of Veterans' Appeals (Board) from a July 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In, July 2005 the Veteran testified before the Board at a hearing held at the RO, and in August 2010 the Veteran testified before the Board at a hearing held via videoconference. In a March 2006 decision, the Board denied entitlement to service connection for hypertension and coronary artery disease with myocardial infarction. The Veteran appealed to the United States Court of Appeals for Veterans Claims. By Order dated in February 2007, the Court vacated the Board's March 2006 decision and remanded the case to the Board for compliance with the instructions in the February 2007 Joint Motion for Remand. In June 2007, the Board remanded the claim for additional development. FINDINGS OF FACT 1. The Veteran's coronary artery disease with myocardial infarction is not related to his active service or active duty for training, or to any incident therein. 2. The Veteran's hypertension is not related to his active service or active duty for training, or to any incident therein. 3. Clear and unmistakable evidence shows that the Veteran's coronary artery disease with myocardial infarction and hypertension existed at the time of the start of the Veteran's active duty for training purposes, and did not permanently increase in severity during that period of service. 4. The evidence does not show that the Veteran's coronary artery disease with myocardial infarction and hypertension were incurred in or aggravated during any active duty or active duty for training purposes. CONCLUSIONS OF LAW 1. Coronary artery disease with myocardial infarction was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2009). 2. Hypertension was not incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131; 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for some disorders, including hypertension, will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2009). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2009). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2009). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable (obvious and manifest) evidence that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b) (2009). Aggravation of a pre-existing condition 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. 3 8 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(b) (2009); Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (presumption of aggravation created by § 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228 (1991). A mere transient flare-up during service of a preexisting disorder does not, in the absence of evidence of a worsening of the underlying condition, constitute aggravation of the disorder. In addition, 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) (2009). Active military, naval, or air service includes any period of active duty training during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24) (West 2002); 38 C.F.R. § 3.6(a), (d) (2009). Active duty training includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2009). Thus, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty training, or from injury incurred or aggravated while performing inactive duty training. 38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). In addition, active duty includes any period of inactive duty for training during which an individual becomes disabled or dies from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurs during such training. 38 U.S.C.A. § 101(24) (West 2002 & Supp. 2009); 38C.F.R. § 3.6 (2009). However, presumptive periods do not apply to active duty training or inactive duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991). The Veteran contends that while serving on active duty for training in May 1985 in Fort Bragg, North Carolina, he suffered a myocardial infarction and was hospitalized for a period of two weeks. He contends that following the hospitalization, his civilian doctor advised him not to return to work for a number of weeks and his medications were adjusted. Then, in June 1986, while serving on active duty for training at Camp Shelby, Mississippi, he contends he suffered a second heart attack and was hospitalized for an additional two weeks. Service medical records from the Veteran's first period of active service show only that on March 1958 separation examination, the Veteran's blood pressure reading was 118/78 and . Active duty service medical records do not show any diagnosis of hypertension or heart condition. Service medical records dated from 1980, when the Veteran entered service with the Army reserves, show that on April 1980 enlistment examination, electrocardiogram was normal. The Veteran's blood pressure was 128/88. On March 1984 periodic examination, he had blood pressure of 130/90. It was noted that he was mildly obese and needed to work on a weight control program. A private medical record dated in March 1985 reflects that while the Veteran was working as a security guard, he experienced heavy chest pain radiating into his back, shoulders, and arms. The pain lasted all day. He sought treatment at the emergency room. The examiner noted that the Veteran was known to have had hypertension and also was a heavy smoker. An electrocardiogram demonstrated sinus bradycardia, with nonspecific ST-T wave changes. He underwent a catheterization in March 1985 which showed no blockage. The examiner's impression was probable acute myocardial infarction of the high lateral wall, chronic tobacco abuse, hypertension, and question of morphine sensitivity. Service medical records show that on May 30, 1985, during active duty for training, the Veteran experienced chest pain. He was hospitalized, and his prior history of hypertension and probable myocardial infarction was noted. The Veteran reported that he had episodic chest discomfort since his myocardial infarction which was treated by his civilian doctor with medications. During the May 1985 hospitalization, no crescendo angina was reported, and an electrocardiogram was interpreted as not suggesting a myocardial infarction. Those records show that on the second day of his hospitalization, he denied any discomfort, chest pain, or dyspnea. He was able to contact his wife and voiced no complaints. His condition was considered to be stable. The following day, he was discharged. The resulting diagnoses were prinzmetal's angina, history of subendocardial myocardial infarction, and hypertension. Private medical records dated in April 1985 and early May 1985 for follow-up show that the Veteran was doing well and his doctor reported that the Veteran could return to work full speed without limitation. A July 1985 report by the Veteran's private physician is to the effect that the Veteran was doing well, was having no chest pain at all, was active, had been able to take off a little weight, and that cardiovascular examination was unremarkable. Service medical records show that in June 1986, while on active duty for training , the Veteran was admitted to the hospital for pain in the left arm and chest. It was noted that he had a myocardial infarction a year and a half prior to that time. An electrocardiogram showed no acute changes. The impression was history of myocardial infarction. He was hospitalized for three days. The Veteran, his partner, his daughter, and a fellow service member have submitted numerous lay statements contending that in 1985 and in 1986, the Veteran was instead hospitalized for a myocardial infarctions, and that those hospitalizations were much longer than shown in the service records. A May 1992 VA treatment record shows that the Veteran had a 15 year history of high blood pressure. In April 2008, the Veteran submitted a private medical opinion by an internist who reviewed the Veteran's claims file and stated it was his opinion that the heart attacks that the Veteran suffered in 1985 and in 1986 were directly related to his work in the Army reserves. The examiner explained that the work as a soldier was extremely stressful, with long hours of support and productivity, and that those pressures, along with his familial pressures, contributed to his in-service cardiac symptoms. The examiner also found it to be significant that the Veteran was asymptomatic prior to the first in-service hospitalization, despite the underlying heart disease. The examiner stated that the Veteran worked in a stressful position for years without any symptoms of heart failure, and that history further supported the conclusion that his service contributed to his 1985 heart attack. The physician stated that had the Veteran's employment been less stressful, he may not have suffered a heart attack until many years later. On December 2009 Independent Medical Examination (IME) requested by the VA, the examiner, a cardiologist, thoroughly reviewed the Veteran's claims file and determined that the Veteran's pre- existing coronary artery disease and hypertension were not aggravated by his service. The examiner summarized the Veteran's record and found it to be significant that on April 1980 enlistment examination, his electrocardiogram was normal, but that his blood pressure was 128/88 and he weighed 206 pounds, indicating that the Veteran's blood pressure and weight were already borderline to excessive risk factors for atherosclerotic heart disease and probably explained the presence of coronary stenosis that was identified in March 1985. The examiner noted that at the time of the March 1985 cardiac catherization, the Veteran was prescribed Aldoril, a blood pressure medication, and had blood pressure that was 132/90. However, despite the Veteran's contentions, the electrocardiogram performed in May 1985 indicated no evidence of myocardial infarction. Following the May 1985 in-service hospitalization, in April 1986, the Veteran weighed 210 pounds and his blood pressure was 164/120, evidencing poor control of blood pressure and a lack of weight management. At the time of his June 1986 in-service hospitalization, his blood pressure was 132/100, and he was given four medications for control. It wasn't until 1988 that a stress test was positive for occlusion. In reviewing the Veteran's medical history surrounding the two in-service hospitalizations, the examiner determined that the Veteran's hypertension most likely had its onset in at least 1980, when his blood pressure showed borderline hypertension and his weight was more than 30 pounds higher than optimal. The examiner determined that the Veteran's coronary artery disease most likely had its onset prior to the March 1985 heart catherization because the catherization showed a LAD lesion that was clinically significant. The examiner determined that the Veteran in fact did not suffer from a myocardial infarction in May 1985 or June 1986, which was documented by serial electrocardiograms and enzymes which showed no change. The examiner determined that the Veteran's hypertension and coronary artery disease did not undergo a permanent increase in severity in either 1985 or 1986. To that extent, with regard to hypertension, the examiner stated that in 1985, there was no documentation of an increase in blood pressure when reviewed with readings before and after, and there was also no evidence of an exacerbation of blood pressure in 1986. To the contrary, there was evidence that prior to his 1986 active duty for training period, private treatment records showed spiked blood pressure more so than during the hospitalization. With regard to aggravation of the Veteran's coronary artery disease, because there was no evidence of a myocardial infarction in service, it could not be said that there was a permanent increase of the Veteran's heart disease, especially in light of the in- service electrocardiogram and enzymes results. The examiner reviewed the April 2008 private medical opinion, and found that the opinion incorrectly stated that the Veteran suffered from a heart attack in 1985 and in 1986, of which there was no basis to make such a conclusion. The examiner also stated that though it was true that stress could initiate a cardiac event, there was no evidence that the Veteran had suffered from job stress while on active duty for training. Further, there was no evidence that the Veteran would not have suffered a heart attack if his employment had been less strenuous employment, as the physician suggested. The examiner found it to be more likely that the Veteran's heart disease and hypertension were the result of continuing risk factors that he did not prevent and ultimately lead to his 1988 heart attack. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board places greater probative weight on the December 2009 IME opinion finding that the coronary artery disease and hypertension preexisted service and were not aggravated by service, and that there was no evidence that the Veteran suffered from a heart attack during the 1985 and 1986 in- service hospitalizations, rather than on the April 2008 private opinion that found that the Veteran's stressful employment as a soldier caused his 1985 and 1986 heart attacks. As the December 2009 examiner noted, there is no evidence in the claims file, and the Veteran has not contended, that employment stress was a factor in his claimed heart attacks or hospitalizations. To the contrary, the Veteran has stated a number of times that his civilian position was comfortable, in that he was able to sit in an air conditioned room. He additionally has not stated that his service duties, that of cook, were stressful, or that they lead to his cardiac disease. Further, though the April 2008 examiner reviewed the claims file in rendering the decision, it is unclear whether the examiner differentiated between the Veteran's assertions and the objective medical evidence when providing the opinion. For example, while summarizing the claims file, the April 2008 examiner stated that in May 1985, the Veteran was admitted to an army hospital for a two-week period for a heart attack, and that in June 1986, he was admitted to an army hospital for ten to twelve days for a heart attack. Those findings do not comport with the Veteran' service medical records, that, despite the Veteran's assertions otherwise, evidence only a three day hospitalization in 1985 with no medical finding of a heart attack and a three day hospitalization in 1986, with complaints of chest pain and reference to a muscle spasm in the rib area, but with no diagnosis of myocardial infarction. That the physician appears to have based his conclusion on the Veteran's assertions, but not on the objective medical evidence of record, and did not explain his reasoning in doing so, further lessens the probative value of that opinion. Also of note, by the end of the report, the physician refers to the Veteran's heart attack as having occurred in 2005 a number of times, rather than in 1985 or in 1986, causing further confusion as to whether he believed the Veteran had suffered a heart attack in both 1985 and 1986, or just once. The December 2009 IME opinion evidences a thorough review of the Veteran's medical history prior to, during, and after the claimed in-service heart attacks, and reasonably explains why the Veteran did not have a heart attack during either the 1985 or 1986 hospitalization, and that the Veteran's hypertension and coronary artery disease not only preexisted his service, but were not aggravated by his service. With regard to aggravation, the examiner explained that the service medical records did not evidence a worsening of the Veteran's cardiac condition, and did not evidence a heart attack, a finding that the private physician neglected to reconcile. Further, although the April 2008 physician stated that the Veteran's heart disease was asymptomatic prior to the 1985 hospitalization, that physician did not reconcile that conclusion with the medical evidence, which, as the December 2009 states, showed the onset of heart disease, hypertension, and chest pains prior to the 1985 hospitalization. Accordingly, because the Board finds that the December 2009 IME opinion outweighs the probative value of the April 2008 private opinion, the Board finds that service connection for coronary artery disease with myocardial infarction and hypertension cannot be established. Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F. 3d 1328 (1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the competent and credible evidence of record weighs against a finding of service connection for either of the Veteran's claims. The medical evidence clearly and unmistakably shows hypertension and heart disease prior to the 1985 in-service hospitalization. Therefore, the Board finds that the Veteran is not entitled to a presumption of soundness. 38 U.S.C.A. § 1132 (West 2002). Further, the competent and probative evidence of records demonstrates clearly and unmistakably that the Veteran's hypertension and heart disease were not permanently worsened or aggravated by his service. 38 C.F.R. § 3.306 (b) (2009). In considering the lay statements of records that assert that the Veteran did suffer a heart attack in service and was hospitalized both times for two week periods, the medical evidence simply does not support those contentions, and there is no reason for the Board to doubt the authenticity of the service medical records. Further, when those records were reviewed by the December 2009 IME examiner, the examiner did not interpret the records as demonstrating a myocardial infarction. Although the Veteran's partner contends that her experience as a licensed practicing nurse provides her with the competency to analyze the records, the Board finds that the IME examiner's opinion, by nature of the fact that he is a cardiologist and has specific training in diagnosing and treating cardiovascular disorders, is more probative. The Board has considered the Veteran and his family's assertions that his coronary artery disease and hypertension are related to his period of active service, or were aggravated by service. However, as laypersons, they are not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran and his family are competent to give evidence about what they experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While the Veteran's partner is competent to some extent due to medical training, the Board finds that the independent cardiologist's opinion is more persuasive. The weight of the medical evidence indicates that the Veteran's coronary artery disease and hypertension were not caused by any incident of service. The Board concludes that the coronary artery disease and hypertension was not aggravated by service. As the preponderance of the evidence is against the claims for service connection, the claims must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. See 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in July 2002, June 2005, and August 2007, a rating decision in July 2003, and a statement of the case in November 2004. These documents discussed specific evidence, the particular legal requirements applicable to the claims, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notice provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notice has not affected the fairness of the adjudication. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudication in the November 2007 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for coronary artery disease with myocardial infarction is denied. Service connection for hypertension is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs