Citation Nr: 1123732	
Decision Date: 06/22/11    Archive Date: 06/28/11

DOCKET NO.  11-00 518	)	DATE
	)
	)

On appeal from the 
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for coronary artery disease.


ATTORNEY FOR THE BOARD

Kara M. Koonce, Legal Intern


INTRODUCTION

The Veteran had active military service from November 1970 to March 1975.

This case comes before the Board of Veterans'Appeals (Board) on appeal from an April 2010 rating decision of the Houston, Texas, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for coronary artery disease.


FINDINGS OF FACT

1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 

2. There is no competent and probative evidence of coronary artery disease in service, manifestations of coronary artery disease within one year following the Veteran's discharge from service, or of a nexus between the post-service diagnosis of coronary artery disease and service. 

CONCLUSION OF LAW

Coronary artery disease was not incurred or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duty to Notify & Assist

The Veteran Claims Assistance Act of 2000 (VCAA) imposes obligations on VA in terms of its duty to notify and assist claimants.  When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the Court held that VA must inform the claimant of any information and 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.

The Board finds the VCAA notice requirements have been satisfied by the February 2010 letter sent to the Veteran.  In the letter, the Veteran was informed that in order to substantiate the claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post-service disability and the disease or injury in service, which was usually shown by medical records or medical opinions.  

As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed him it had to obtain any records by any federal agency.  The letter also informed him that on his behalf, VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals.  Finally, the RO told the Veteran that he could obtain private records himself and submit them to VA.

The Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of; and (5) effective date of the disability.  The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded.  In the present appeal, a February 2010 letter to the Veteran included the type of evidence necessary to establish a disability rating and effective date for the disability on appeal.

VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010).  In connection with the current appeal, VA has obtained the Veteran's service treatment records and private treatment records from November 2008 to December 2008.

Although an examination or an opinion was not obtained in connection with the Veteran's remaining claims of service connection for coronary artery disease, the Board finds that VA was not under an obligation to provide an examination, as such is not necessary to make a decision on the claim.  The Boards finds that VA need not conduct an examination with respect to this claim because the information and evidence of record contains sufficient competent medical evidence to decide the claim.  

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  See 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006).

As discussed fully below, there is no competent or credible evidence of an event or injury or disease in service.  As such the third prong of McLendon has not be met.  In addition, while there is competent medical evidence of record; that evidence is not probative and therefore there is no evidence which satisfies the third prong of McLendon requiring an indication that the disability or persistent or recurrent symptoms of a disability may be associated with a veteran's service or with another service-connected disability.  For these reasons, a VA examination is not warranted.


II. Decision

The Veteran contends in a January 2010 informal claim that he suffered from coronary artery disease.  He also noted in an April 2010 notice of disagreement that his coronary artery disease developed over time and that it is "as likely as not" that his coronary artery disease is related to his military service.  The Veteran asserts that service connection is warranted for his coronary artery disease. 

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.  Service connection for coronary artery disease may be granted if manifest to a compensable degree within one year from service.  38 U.S.C.A. § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.3309(a).  Service connection may also be granted for any disease after service when all the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  David v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition.  Such evidence must be medical unless it relates to a condition as to which under the Court's case law, lay observation is competent.  Savage v. Gober, 10 Vet. App. 488, 498 (1997).  In addition, if a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection.  38 C.F.R. § 3.303(b).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Review of the Veteran's service treatment records fails to show any complaints, treatment, or a diagnosis of a heart disorder during service.  An August 1971 report of medical history notes that the Veteran denied any significant medical history, and he noted he was in good health.  The August 1971 and June 1971 report of medical examination note that the heart was assessed as normal.  Upon discharge from service, clinical evaluation of the heart was normal, as reflected on the February 1975 report of medical examination at separation.

An April 1976 post-service VA examination for a right hernia service connection claim assessed the heart as normal with findings of regular rhythm, normal peripheral vessels, and no murmurs or cardiac enlargement.  However, review of the Veteran's later post service private treatment records reflect complaints, treatment, and diagnosis of coronary artery disease.  Beginning in November 2008, the Veteran was diagnosed with an acute myocardial infarction and underwent bypass surgery and had a stent placed in his right coronary artery.  In December 2008, the Veteran was readmitted for coronary artery bypass surgery.  A February 2009 medical examination assessment included a history of coronary artery disease, chest pain, hypertension, and hyperlipidemia but reported no significant change when compared to the November 2008 report.  

The Board notes that not one of the treatment records mentioned above etiologically related the Veteran's current coronary artery disease to service or any event in service.  As previously noted, following separation from service, the first documented treatment for a heart disorder is first shown in November 2008 and additional treatment for coronary artery disease was noted in December 2008, which indicates multiple years after separation from service.  This gap of time in the record militates against a finding that the Veteran's coronary artery disease was caused during service.  See 38 C.F.R. § 3.303(b); see also Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (suggesting that service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service).

The Board acknowledges that the Veteran is competent to give evidence about what he has experienced; for example, he is competent to discuss his current symptomatology and other experienced symptoms.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  Furthermore, lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In this regard, it is acknowledged the Veteran currently experiences symptoms of coronary artery disease.  Here, however, the Veteran's statement in the April 2010 notice of disagreement, stating that his coronary artery disease developed over time and is "as likely as not" related to his military service, does not include any contention that he has had continuity of symptoms related to coronary artery disease since active service.  

The Board is aware of the Veteran's contentions that his heart disorder is somehow etiologically related to service; however, as the record does not reflect that the Veteran possesses a recognized degree of medical knowledge, his assertions as to the existence, nature and etiology of the current diagnoses are of no probative value.  Espiritu v. Derwinski, 2 Vet. App. 492 (1992).  

In support of his claim, the Veteran submitted a statement by Dr. D.C.  In a December 2009 private medical statement, Dr. D.C. noted that the Veteran was diagnosed with coronary artery disease.  He also asserted that he had reviewed the Veteran's complete military, social, and family history.  Dr. D.C. states that coronary artery disease is a chronic long-term condition, and he suspects the Veteran's disease has been present for quite some time.  He concludes that the Veteran's current disease is "as likely as not related to his time of military service as to any other causative factor."  

While the Board does consider Dr. D.C.'s medical opinion to be competent medical evidence, this evidence is not probative.  The private opinion suggests a connection between the Veteran's coronary artery disease and his military service, but does not provide a full discussion of the medical reports relied upon to support his opinion.  Further, Dr. D.C. failed to include or explain the April 1976 post-service VA examination, which assessed the heart as normal.  The Board acknowledges that Dr. D.C. has been the Veteran's cardiologist since November 2008.  While he states that he reviewed the Veteran's history, he does not indicate that he reviewed any records, including the service treatment records.  Dr. D.C. fails to give any facts to support this conclusion or explain the normal findings in April 1976.  Thus, the Board finds that in conjunction with the overall evidence of record, the private opinion does not provide any more than a speculative nexus between service and the Veteran's coronary artery disease.  Therefore, the Board has given no probative value to this opinion.  There is no probative medical evidence suggesting a link between the coronary artery disease and the Veteran's active military service.  

Given the service treatment records, which reflect normal findings of the Veteran's heart upon discharge, the absence of complaint or treatment until several years after service, and the absence of any competent, probative and credible evidence relating the Veteran's coronary artery disease to service, the Board finds that the evidence weighs against the Veteran's claim.  

Accordingly, the Board finds that a preponderance of the evidence is against the claim for service connection for coronary artery disease, and the benefit-of-the-doubt rule is not for application.  See Gilbert, 1 Vet. App. at 55.


ORDER


Entitlement to service connection for coronary artery disease is denied.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs