Citation Nr: 1111494 Decision Date: 03/22/11 Archive Date: 04/05/11 DOCKET NO. 06-10 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a heart disability, including hypertension. 2. Entitlement to service connection for a spine disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1980 to February 1983. This case is before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, denied entitlement to service connection for a heart condition and a spine condition. In October 2009, the Board remanded the Veteran's claims for additional development. In January 2011, the Veteran submitted additional medical records, which are duplicative copies of other medical evidence of record which the RO has already considered. Hence, the evidence is not pertinent to his claims and the Board need not remand the case to the RO for consideration of the evidence. 38 C.F.R. § 20.1304(c). Additionally, in March 2011, the Veteran submitted a letter he sent to his Senator, which contains only additional argument that is redundant of arguments previously made by the Veteran. This argument does not tend to prove, or disprove, any fact in dispute, and has already been considered by RO. Hence, the newly submitted letter is not pertinent to his claim and the Board need not remand the case to the RO for consideration of the argument. 38 C.F.R. § 20.1304(c). The issue of entitlement to service connection for a spine disability is addressed in the REMAND portion of the decision below and is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The competent evidence does not clearly and unmistakably show that the Veteran's heart disability, including hypertension, pre-existed service. 2. A heart disability, including hypertension, was not diagnosed in service or for many years thereafter, and a preponderance of the competent evidence is against a finding that the current heart disability, including hypertension, is related to service. CONCLUSION OF LAW The criteria for service connection for heart disability, including hypertension, have not been met. 38 U.S.C.A §§ 1101, 1110, 1112, 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2010); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010). A December 2003 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claim for service connection is denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran's service treatment records (STRs), VA medical treatment records, and private treatment record have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran's Social Security Administration disability determination, and the records considered in that determination, have been obtained. 38 C.F.R. § 3.159 (c)(2). Adequate VA examinations were conducted to assess the nature and severity of the Veteran's claimed heart disability. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence relevant to the issue decided is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the 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; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis The Veteran seeks service connection for a heart disability. He contends that he has a current disability that is due to a myocardial infarction and chest pain during service. The Veteran has also reported that he had a history of a heart murmur during childhood. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Generally, to prevail on a claim of service connection on the merits, there must be medical evidence of (1) 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 or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Where certain chronic diseases, including cardiovascular-renal disease and hypertension, become manifest to a degree of 10 percent within one year from the date of separation from service, such disease shall be considered to have been incurred or aggravated by such service, notwithstanding there is no evidence of that disease during service. 38 U.S.C.A. §§ 1101, 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, it is noted that clinical testing during the Veteran's February 1980 entrance examination revealed that his heart and vascular system were normal. As directed by the October 2009 Board remand, in July 2010, a VA examination was conducted and the examiner found that the Veteran did not have any heart condition prior to entry into service. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1153; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. See Wagner, supra. The Veteran's claims that he had a pre-existing heart condition or murmur does not clearly and unmistakably indicate that the Veteran's current heart disability pre-existed service when weighed against the fact he had a normal entrance examination and the opinion of the July 2010 VA examiner. Thus, the Veteran's claim is one for service connection. See Id. The Veteran currently has a heart disability, including hypertension. A December 2004 VA treatment record notes that, following blood pressure testing, a medical professional assessed the Veteran with hypertension/tachycardia. Voluminous VA and private treatment records both prior to, and after, the December 2004 VA treatment record, including January 2004 and July 2010 VA examination reports, show that the Veteran has no heart or cardiac disease of any type. The requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication. See McLain v. Nicholson, 21 Vet. App. 319 (2007). Thus, it is conceded that the Veteran has a current heart disability, to include hypertension. A November 1981 STR notes that the Veteran complained of chest pain for 1 week whenever he inhales and an assessment of diaphragmatic irritation; rule out muscle spasms, was given. The November 1981 STR does not indicate that the Veteran was treated for any kind of cardiac or heart problem, but rather diaphragmatic irritation, and there are no STRs of record indicating that the Veteran had any treatment for, or diagnoses of, any type of heart condition or a myocardial infarction. Furthermore, in July 2010, following a review of the Veteran's claim file, a VA examiner opined that the Veteran did not have any heart condition during service. The unfavorable evidence consists of the fact that the first contemporaneous medical evidence of any type of heart disability, including hypertension, is at least 15 years or more after the Veteran was discharged from active service. Indeed a January 2004 VA examination report notes that the Veteran had no findings compatible with intrinsic heart disease or cardiac murmur. The passage of more than 15 years before any evidence of the disability is of record weighs heavily against a finding that such disability is related to service on a direct basis. See 38 C.F.R. §§ 3.307, 3.309. See Savage v. Gober, 10 Vet. App. 488 (1997); see also Maxson v. West, 12 Vet. App. 453, 459 (1999). Moreover, to the extent that the Veteran is asserting or implying a continuity of symptomatology, it is noted that he is competent to report observable heart symptoms such as chest pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to state whether he has now, or had following service, a diagnosis of hypertension or tachycardia. See Layno, supra. Furthermore, such assertions are not found to be credible in light of the complete lack of complaints of, or treatment for a heart disability during service, because in January 2004 the Veteran did not have a diagnosed heart disability, and because the Veteran did not raise a claim until 2003, approximately 20 years following discharge. See Savage supra; Barr v. Nicholson, 21 Vet. App. 303 (2007). Indeed, if his symptoms were continuous since active service, it would be reasonably expected that he would have raised his claim sooner or sought treatment for them. The negative evidence in this case outweighs the positive. The Veteran genuinely believes that his heart disability, to include hypertension, is related to service. The Board notes the Veteran's contentions that his claimed disability is related to service. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the diagnosis or etiology of his claimed disability and his views are of no probative value. See Layno supra. Thus, the Veteran's opinion does not outweigh the competent evidence of record, which shows that he did not have a heart disability during service and that his current heart disability did not develop for many years after service. See Jandreau, supra. Additionally, the first contemporaneous medical evidence of a diagnosis of hypertension is well after the one-year presumptive period from discharge from service; thus, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the claim for a heart disability, including hypertension; there is no doubt to be resolved; and service connection is not warranted. Gilbert, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for a heart disability, including hypertension, is denied. REMAND The Veteran seeks service connection for a spine disability. The October 2009 Board remand notes that the examiner was to provide an opinion as to whether it is at least as likely as not that any spine disability had its onset during, or is related to, service, including the in-service use of spinal anesthesia, and whether a spinal arthritic condition became manifest within one year of separation from service. A VA examination was conducted in July 2010, and the examiner noted that the Veteran's cervical spine had disc narrowing throughout many levels and mild narrowing of the sacroiliac joints. The examiner opined that the incident of the spinal anesthetic has no validity or rationale for causing any long term difficulties with the lumbar spine. Additionally, the examiner opined that "any problems with work activities would be caused by fatigue and overload of the very weak paraspinal muscles thought-out the spinal area." The meaning of this latter opinion from the examiner is not clear. The July 2010 examiner failed to clearly identify the Veteran's various cervical and thoracolumbar back disabilities and failed to offer an opinion as to whether each is related to service as required by the October 2009 Board remand. Specifically, the examiner made no comment on whether the Veteran's cervical spine disability is related to his in-service cervical spine treatment or whether an arthritic spinal disability became manifest within one year of separation from service. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall v. West, 11 Vet. App. 268 (1998). Thus, a new VA examination must be provided to address the nature and etiology of the Veteran's claimed spine disability. The appellant is hereby notified that it is her responsibility to report to any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.655. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination to determine the nature and etiology of his current spine disability. All necessary medical testing and imaging should be conducted. As to any current cervical or thoracolumbar spine disability identified, the examiner is to provide an opinion as to whether it is as likely as not related to, or had its onset during, service, including in-service spinal anesthesia. If any current spinal arthritic disability is identified, the examiner must provide an opinion as to whether it at least as likely as not became manifest within one year of separation from service. The claim folder must be made available to the examiner for review in conjunction with the examination. A detailed rationale for all medical opinions must be provided. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs