Citation Nr: 1120105 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 10-22 432 ) 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. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to October 1964, including service in the Republic of Vietnam from March 1962 to January 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that denied service connection for a heart disorder, bilateral hearing loss and tinnitus. In a rating action issued in April 2010, the RO awarded service connection for bilateral hearing loss and tinnitus. As such, those matters are no longer on appeal. FINDING OF FACT The preponderance of the evidence shows that the Veteran does not have a heart disability. CONCLUSION OF LAW A heart disorder was not incurred in or aggravated by service or a service-connected disability; and may not be presumed to have been incurred as a result of service. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements regarding service connection were accomplished in a December 2008 letter, provided before the adjudication of the claim. Accordingly, the Board finds that VA satisfied its duty to notify under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service, VA and private treatment records, and records from the Social Security Administration (SSA) have been obtained and he has been provided with a VA examination in connection with the present claim. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf and he also has declined a hearing related to his present claim. Thus, the Board finds that reasonable efforts were made by VA to satisfy its duty assist and to obtain evidence necessary to substantiate the Veteran's claim. No further assistance to develop evidence is required. Service Connection The Veteran contends that he has a heart disorder due to service, to include as secondary to service-connected hypertension. In this regard, the Board notes that service connection is also in effect for diabetes mellitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). In addition, service connection may be established on a presumptive basis for a disability resulting from exposure to an herbicide agent such as Agent Orange. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. See 38 C.F.R. §§ 3.307(a)(6)(iii); see also VAOPGCPREC 7-93. The Secretary of Veterans Affairs has determined that there is a presumptive positive association between exposure to herbicides and the disorders listed in 38 C.F.R. § 3.309(e). Effective August 31, 2010, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina), is included as a disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). (Under 38 C.F.R. § 3.309(e), the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease. 38 C.F.R. § 3.309(e) Note 3.). Here, exposure to an herbicide is conceded as the Veteran served in Vietnam between March 1962 and January 1963. However, the Veteran has not been diagnosed with ischemic heart disease or any of the noted cardiac conditions cited. Thus, the criteria for presumptive service connection on the basis of a chronic disease pursuant to 38 C.F.R. § 3.309(e) are not applicable. In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Here, the Veteran has not been diagnosed with any current heart disability. AS such, although service connection is in effect for hypertension and for diabetes mellitus, service connection for a heart disorder is not warranted on a secondary basis. 38 C.F.R. §§ 3.310(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) 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); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Service treatment records do not reflect any diagnosis or treatment for a heart disorder. The Veteran's October 1964 separation examination report reflects a normal evaluation of the heart. Post-service private, VA, and SSA medical records do not reflect evidence of a heart disability. The private medical records, dated many years prior to the date the Veteran filed the instant claim, reflect that an EKG performed in November 1996 showed poor R-wave progression. A private physician noted that this was possibly the result of an old silent myocardial infarction. The VA records show treatment for hypertension. An echocardiogram (ECG) and a left ventricle function test in November 2001 were normal. Additional ECGs performed in May 2007 and September 2008 were interpreted as normal. The Veteran was afforded a VA examination in February 2009. The examiner reviewed his claims file and medical records. Following a comprehensive physical examination, the examiner indicated that there was no objective evidence of a heart condition, to include ischemic heart disease. The examiner noted that the Veteran had two EKGs in 1996 that were felt to possibly indicate a prior myocardial infarction (MI). The examiner explained that the computer interpretation of the VA EKG conducted in November 1996 was to "consider MI," which means that the Veteran needed further evaluation, it did not mean there was absolute proof of a prior MI. The examiner also noted that the private EKG in December 1996 showed the same abnormality and the physician felt that a "prior MI cannot be excluded," which means that the Veteran may have had a heart attack in the past, but this was not certain. The Veteran received additional follow-up from a cardiologist who performed an exercise stress test to search for ischemic changes that would indicated coronary artery disease. However, the test did not show ischemia and thus it was assumed that there was no coronary artery disease/heart condition. The examiner also noted that a VA stress test and echocardiogram in 2001 were both normal, as have been subsequent EKGs. Further, the premature ventricular complexes noted on the 2008 EKG are of no clinical significance. The examiner stated further, that in summary, the Veteran did have abnormal EKGs in 1996; however further testing revealed no actual heart condition and EKGs have subsequently been normal. If there had been an actual heart attack in the past, one would expect the abnormal findings to still be present. Moreover, as the Veteran had uncontrolled blood pressure in 1996 and although it would be speculative to state this was any certainty, it is within the realm of possibility that the EKG abnormality was related to such high blood pressure. In conclusion, there is no objective evidence that the Veteran has ischemic heart disease or any other significant heart condition. There is no other competent evidence of a current heart disability. The Veteran, in his May 2010 substantive appeal, argues that the ECG reports show a possible prior heart attack and poor wave progression borderline ECG. He also argues that it is not inconceivable that he has a heart condition or coronary artery disease in light of his high blood pressure. The Board finds that a diagnosis of a chronic heart disorder is a complex medical question not capable of lay observation and not otherwise the type of medical issue for which lay evidence is competent evidence. Accordingly, the Veteran's conclusory lay statements are not competent or probative evidence supporting his claim. See Davidson, 581 F.3d at 1316; Jandreau , 492 F.3d at 1376-77. Moreover, even if his statements were competent, they are outweighed by the more probative VA examiner's medical opinion that no current heart disorder exists (other than hypertension) as that opinion was based on an examination, a review of the claims folder, and was supported with a detailed clinical rationale. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. Simply put, in the absence of proof of present disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no current heart disorder that can be related to service, the claim for service connection is denied. ORDER Service connection for a heart disorder is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs