Citation Nr: 1108906 Decision Date: 03/07/11 Archive Date: 03/17/11 DOCKET NO. 10-21 879 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a heart disorder. ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1943 to February 1946. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from April 2009 and June 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office in St. Paul, Minnesota (RO). 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). FINDING OF FACT The Veteran's current heart disorder is not shown to have been present in service, or within one year of service separation, nor is it shown to be the result of his military service or any incident therein. CONCLUSION OF LAW A heart disorder was not incurred in or aggravated by active military service, and it cannot be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions under the Veterans' Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). 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). 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). Further, this notice must include information 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 RO's September and November 2008 letters advised the Veteran of the foregoing elements of the notice requirements, to include a request for private medical records and employment physical examinations. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). With respect to the Dingess requirements, the RO's September 2008 and November 2008 letters provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. Accordingly, with this letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, as well as identified VA and private medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. A January 2009 response from the National Personnel Records Center (NPRC) reflects that part of the Veteran's service records may have been lost in the 1973 fire in St. Louis. In addition, while the record includes a certificate of completion of a radio operator mechanic training from August 1944 to April 1945, a March 1997 NPRC response indicated that the academic records from the radio operator course at the Army Air Forces technical school in Scott Field, Illinois, were not available, but morning reports for the period of November 1945 to February 1946 have been obtained from an alternate records source. Although the RO did not specifically notify the Veteran that his service records may have been lost, the record clearly indicates that the Veteran had actual knowledge of the unavailability of such records. In addition, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Specifically, the RO's February and March 2009 letters requested that Veteran submit any information he might have regarding the claimed in-service incident that he claimed caused his current heart disorder. In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Veteran was afforded a VA examination to determine the etiology of his current heart disorder. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The Board finds the VA examination adequate as it was based upon a complete review of the Veteran's claims file, examination of the Veteran, and with consideration of the Veteran's statements; the VA examiner also provided a written rationale for the conclusion reached. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board believes that the heightened duty to assist has been satisfied in this case. See Ussery v. Brown, 8 Vet. App. 64 (1995). Finally, as there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). 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; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, to include arteriosclerosis and endocarditis, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. § 3.307, 3.309. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). Generally, in order to establish service connection for the claimed disorders, there must be (1) medical 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) medical 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). Historically, the Veteran served on active duty in the Army as a radio operator from September 1943 to February 1946 during the World War II. He claims that his currently diagnosed heart disorder, to include erratic heartbeat, was incurred in an in-service incident during aviation training in June 1944 while stationed in Santa Ana, California. Specifically, the Veteran contends that he passed out during high altitude training in a pressure chamber. He reported that he woke up with a sore chest and was told that his heart had stopped. He contends that he was transferred to the radio mechanics school because he had been disqualified as an aviation crew following the claimed training incident. During a June 2010 RO hearing, the Veteran stated that after his service separation, he was not able to pass physical examinations provided by private employers due to a heart condition. A June 1944 service personnel record reflects that the Veteran was to be transferred to the Army Air Forces flight training school in Santa Ana, California. The record also includes a certificate of completion of a radio operator mechanic training from August 1944 to April 1945. The Veteran's available service treatment records are silent as to any complaints, treatments, or diagnoses of a heart disorder. His February 1946 separation examination report is negative for any heart abnormalities and the chest x-ray showed no significant abnormality. A March 1981 private radiology consultation report noted that there was some old fibrotic scarring in the left lower lung field but no evidence of active pulmonary or cardiac disease. Private hospital records reflect that in June 1999, the Veteran was admitted with atypical chest pain and underwent coronary angiography with stenting and angioplasty of the left anterior descending (LAD) lesion. The cardiographic tests revealed positive stress echocardiogram for evidence of LAD territory ischemia in the first stage of stress, normal left ventricular size and systolic function at rest, mild concentric left e ventricular hypertrophy, Doppler indices suggesting a diastolic dysfunction, moderately severe to severe mitral insufficiency, and mild to moderate tricuspid insufficiency with mild pulmonary pressure elevation. An October 2005 private treatment report noted that the Veteran's heart sounds were erratic with atrial fibrillation at a controlled rate. A December 2005 VA treatment report shows a history of atrial fibrillation and mitral valve disorders since December 2003. In an October 2007 VA treatment report, the cardiovascular examination revealed irregular heart rhythm and distant sounds with systolic murmur. The diagnosis was chronic atrial fibrillation without anticoagulation. In a May 2008 private treatment report, the Veteran stated that his heart became erratic while undergoing an evaluation to become an aerial gunner. The Veteran stated that he spent some time in the infirmary and was taken off air duty. The private physician noted however, that the related records were all lost. VA treatment records, dated from May 2008 to March 2010, reflect consistent diagnoses of coronary artery disease and atrial fibrillation and that the Veteran is taking diltiazem for his atrial fibrillations for rate control as well as the blood pressure and heart. The Veteran was afforded a VA examination in July 2010. The VA examiner stated that the claims file was reviewed. The Veteran reported erratic heartbeat and syncopal episode following an air crew training in the pressure chamber at 38,000 feet in 1945. However, the examiner noted that the Veteran's February 1946 discharge physical reported no abnormal cardiovascular examination. The Veteran stated that he was denied employment after his military service due to abnormal findings from work employment physical and that he was self-employed due to the above. However, the examiner stated that there were no related records in the claims file and that the Veteran was unable to provide a diagnosis or description of what was found, nor was there any further evaluation by a civilian doctor to follow up on the findings. As to the Veteran's coronary artery disease, the examiner noted that a June 1999 private hospital record reported stenting and angioplasty of the LAD with no secondary diagnosis of atrial fibrillation or mitral valve disorder on the discharge summary. Findings from a June 1999 echocardiogram stress test revealed moderately severe to severe mitral insufficiency and mild to moderate tricuspid insufficiency, with mild pulmonary pressure elevation, but there was no documentation to support atrial fibrillation during the stress test. The examiner noted another echocardiogram completed in July 2005 indicated that atrial fibrillation was likely secondary to the mitral valve problem and concluded that atrial fibrillation was first diagnosed in 2003, "likely due to severe valvular disease, Acetylsalicylic acid only due to history of thrombocytopenia." After conducting cardiovascular, heart, and lung examinations, as well as all necessary diagnostic and clinical tests, the diagnoses were coronary artery disease, mitral valve disorder, and atrial fibrillation. The examiner considered the Veteran's reports of erratic heartbeat and the syncopal episode following an air crew training in the pressure chamber but stated that documentation did not confirm any diagnosis of an abnormal heart rhythm during military service, or at the time of discharge, or within one year of military service. The examiner opined that the Veteran's coronary artery disease and mitral valve disorder were not "caused by or aggravated by" the Veteran's military service. In support of this opinion, the examiner stated that the Veteran's coronary artery disease and mitral valve disorder were both diagnosed in 1999, which was 53 years after his military service. The examiner also opined that atrial fibrillation diagnosed in 2003 was not caused by or aggravated by military service, but was likely due to the valve disorder. After reviewing the evidence of record, the Board finds that the evidence of record does not show that the Veteran's current heart disorder is related to his military service. There are current diagnoses of coronary artery disease, mitral valve disorder, and atrial fibrillation in the record. Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, the Veteran's service treatment records and the post service treatment records fail to document any complaints of or treatment for a heart disorder for more than 53 years after the Veteran's discharge from the service. The Veteran's reports of an erratic heartbeat and syncopal episode following an air crew training in the pressure chamber and his lay statements that shortly after service separation, he was not able to pass physical examinations provided by private employers due to a heart condition. The Veteran is competent to report the training incident in service or what he was told during physical examinations by medical professionals regarding his heart condition in service or post-service. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). The Board these statements credible in that regard. However, these statements are not sufficient evidence to establish a chronic heart disorder in service or within one year of service separation, as the nature and degree of any heart abnormalities was not provided. As such, the Board finds that the Veteran's statements do not hold significant probative value. Moreover, the prolonged period without complaints or treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claim herein. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). Furthermore, the only competent medical opinion of record as to whether the Veteran's current heart disorder is related to his active service is negative to his claims. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). The July 2010 VA examiner concluded that the Veteran's coronary artery disease, mitral valve disorder, and atrial fibrillation were not related to military service. Although the examiner considered the Veteran's reports of erratic heartbeat and syncopal episode following an air crew training in the pressure chamber, the Veteran's separation physical noted no abnormal cardiovascular examination and there were no records regarding any heart condition for 53 years following his military discharge. Thus, the examiner found that the coronary artery disease and mitral valve disorder were not "caused by or aggravated by" the military service. With regard to the Veteran's atrial fibrillation, the examiner concluded it was due to valve disorder. In reaching the conclusions, the examiner offered a rationale that was based on a complete review of the Veteran's claims file, to include the Veteran's statements, and was consistent with the other evidence of record. To the extent that the Veteran contends that his current heart disorder was caused by the claimed in-service training incident, the Board finds these statements as to medical causation are not competent evidence to establish service connection. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). In certain unique instances lay testimony may be competent to establish medical etiology or nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316-17 (Fed. Cir. 2009). However, in this case, the Board finds that the question of whether the Veteran's in-service training incident led to his current heart disorder does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. The evidence of record does not demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent etiological opinion that his heart disorder was the result of his military service. Espiritu, 2 Vet. App. at 494. Accordingly, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for a heart disorder. Id. In this, and in other cases, only independent medical evidence may be considered to support Board findings. The Board may not base a decision on its own unsubstantiated medical conclusions. Colvin, 1 Vet. App. at 175. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a heart disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs