Citation Nr: 1124697 Decision Date: 06/29/11 Archive Date: 07/06/11 DOCKET NO. 08-16 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from March 1955 to May 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs Tiger Team Special Processing unit in Cleveland, Ohio. Jurisdiction of the case resides with the Regional Office (RO) in Indianapolis, Indiana. This claim was previously remanded by the Board in April 2010 for additional evidentiary development. FINDING OF FACT The Veteran did not manifest a chronic heart disorder during, proximate to, or as a result of, active military service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1131, 5103(a), 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 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 and 3.326(a) (2010). Proper notice from VA must inform the Veteran 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 Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). 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 apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between a 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. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in February 2002 and August 2006 addressed all notice elements listed under 3.159(b)(1) and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service medical records. Also, the Veteran received a VA medical examination in May 2010, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA and copies of his private medical records. VA also attempted to obtain the Veteran's Social Security Administration (SSA) records, but in May 2010, SSA notified VA that the Veteran's records had been destroyed. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, the Board finds there has been substantial compliance with its April 2010 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Veteran was scheduled for a VA examination and that he attended this examination. The Appeals Management Center (AMC) also attempted to obtain copies of the Veteran's outpatient treatment records since 1983, but in December 2010, the AMC was notified that no records existed prior to May 7, 2010. The AMC later issued a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Facts and Analysis The Veteran contends that he is entitled to service connection for a heart condition. However, as outlined below, the preponderance of the evidence of record demonstrates that this condition did not manifest during, or as a result of, active military service, has not been chronic since service, and is not otherwise related to service. As such, service connection is not warranted. The Veteran's service treatment records do not reflect that he suffered from a chronic heart condition during his active military service. According to the Veteran's February 1955 enlistment examination, the Veteran's heart was normal on objective examination at this time. A copy of a 1956 service treatment record notes that the Veteran was seen with occasional pain in the heart region for the past two months. Examination revealed normal heart actions with no murmur. The Veteran's pulse and blood pressure were also found to be normal at this time. No actual disorder associated with this symptomatology was diagnosed and subsequent treatment records fail to demonstrate any additional treatment for cardiac symptomatology during military service. Evaluation of the Veteran's heart performed as part of his March 1959 separation examination was also deemed to be normal and no heart condition was diagnosed at this time. Thus, there is no evidence of a chronic disorder of the heart during active military service. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The Veteran's cardiac disorder is not among the disorders which have been designated as a chronic disorder for service connection may be granted if the disorder appears within a specified period following service discharge. 38 U.S.C.A. § 1101; 38 C.F.R. § 3.309. In any event, there is no clinical evidence that the Veteran manifested a cardiac disorder proximate to his service. Post-service treatment records fail to demonstrate that the Veteran suffered from chronic symptomatology of a heart condition following his separation from active duty. The first medical evidence of record regarding the heart is a December 1981 letter from a private physician, H.O.H., MD. The letter indicates that Dr. H had been treating the Veteran since December 7, 1980 when he presented with ventricular tachycardia requiring cardioversion. Dr. H further noted that the Veteran had a history of hypertension and an extensive work up revealed that he also had "Wolf, Parkinson, White [sic]" syndrome and cardiomyopathy. Dr. H did not suggest that the Veteran's condition was in anyway related to military service or that he had suffered from chronic symptomatology since 1959. A subsequent private treatment note from October 1983 indicates that the Veteran was referred for evaluation of possible Wolff-Parkinson-White disorder with White complex tachycardia. It was noted that the Veteran had suffered from hypertension for the past 10 years and that he had positive risk factors for coronary disease including the smoking of cigarettes. Arteriographic imaging revealed normal coronary arteries with some wall motion abnormality. A December 1986 treatment record again notes a history of ventricular tachycardia, Wolff-Parkinson-White syndrome, electrophysiologic study induced atrioventricular (AV) node reentry and probable cardiomyopathy. Again, none of these records suggested that the Veteran's heart conditions were in any way related to military service or that his symptomatology had existed since his separation from active duty. More recent treatment records continue to fail to relate the Veteran's cardiac symptomatology to military service. According to a November 2001 private treatment record from the previously referenced Dr. H, the Veteran suffered from cardiomyopathy, a history of coronary spasm with anterior non-Q wave infarction, Wolff-Parkinson-White with a history of ventricular tachycardia and supraventricular tachycardia with syncope, morbid obesity, and sleep apnea. It was noted that the Veteran had been on amiodarone since 1983. Dr. H did not suggest that any of the Veteran's conditions manifested as a result of military service. The Veteran was again treated for his heart in October 2002. He was noted to have a history of supraventricular and ventricular tachycardia, Wolff-Parkinson-White syndrome, ischemic cardiomyopathy, prior stent placement, and prior myocardial infarction. Imaging revealed an abnormal gated single-photon emission computed tomography (SPECT) study with significant left ventricular enlargement with anteroapical hypokineses, markedly abnormal perfusion study displaying a large inferior inferioposterior and posterolateral perfusion defect that was predominantly fixed but may reflect prior nontransmural infarction or may be due entirely to soft tissue attenuation artifact, and at least moderately reversible anterior and anteroapial perfusion defect consistent with ischemia. The examining physician made no reference to the Veteran's military service. A July 2003 private treatment record notes that the Veteran had a long history of coronary disease with multiple coronary artery interventions. However, the record also indicates that the Veteran had a long history of severe obesity, a history of hypertension for a couple of years, a history of hypothyroidism, a history of hyperlipidemia and adult onset diabetes for about two years. There was no suggestion that any of these conditions were somehow related to military service. Subsequent private treatment records continued to note a number of cardiac disorders, but again, there was no suggestion that any of the disorders manifested during, proximate to, or as a result of active military service. The Veteran was afforded a VA heart examination in May 2010. The examiner noted that the Veteran's heart condition manifested in 1980. The Veteran reported that he had minor problems as a child but that his first severe attack was not until 1980. Chest imaging revealed thickening and increased density along the right paratracheal stripe and an ovoid density overlying the heart. The examiner diagnosed the Veteran with coronary artery disease post-myocardial infarction and stent placement, intermittent ventricular tachycardia post-pacemaker implantation, and mild hypertensive heart disease. The examiner opined that the Veteran's heart conditions were not caused by his active military service. The examiner noted that after review of the Veteran's claims file, there was no substantial evidence linking the arrhythmia conditions the Veteran had experienced to his military service. Rather, the examiner felt it was more likely that the Veteran's conditions manifested due to arteriosclerosis which the Veteran could have inherited from his mother, morbid obesity, or a combination of both of these factors. Subsequent VA outpatient treatment records demonstrate that the Veteran has continued to seek treatment for his heart. However, none of these records provide any evidence in support of the Veteran's assertion that his heart disorder manifested as a result of active military service. The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for a heart condition. There is no evidence of a chronic heart condition during active military service. While the Veteran did report chest pain for the previous 2 months in 1956, no clinical provider has linked this episode to a current disorder or to symptoms the Veteran next sought treatment for in about 1980, when more than 20 years has elapsed after his service discharge. Thus, the preponderance of the evidence of record suggests that the symptoms reported in 1956 were acute and transitory. The Veteran's enlistment examination and separation examination found his heart to be normal and there is no evidence of follow-up treatment for this symptomatology from 1956 to 1959. The above conclusion is supported by the absence of post-service medical treatment for the heart until 1980. The first post-service evidence regarding the heart is the December 1981 letter from Dr. H in which it was noted that the Veteran was first treated by him in December 1980. This would be approximately 21 years after the Veteran's separation from active duty. When considering whether or not to grant a claim for service connection, the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In this case, the absence of any medical treatment for more than 20 years establishes that the Veteran did not suffer from chronic symptomatology of the heart following his separation from active duty. The Board recognizes that the Veteran alleged in his May 2007 notice of disagreement that treatment records from 1959 to 1980 were no longer available due to the death of his physician. However, the Board does not find this assertion to be credible. The Veteran has submitted no other evidence, lay or otherwise, to suggest that he did in fact receive medical treatment for his heart since 1959. The records submitted by the provider who treated the Veteran in 1980 and 1981 include no notation that the Veteran was being treated for symptoms that had been present since 1959 or chronically prior to 1980. Furthermore, the Veteran indicated in his original claim of January 2002 that he did not begin receiving medical treatment for a heart condition until December 6, 1980. Finally, the Veteran provided extensive testimony regarding his heart condition to the SSA in February 1985, when he indicated that his first heart problem was in 1980. The SSA records establish that no provider noted a report of a prior history of prior chronic cardiac symptomatology. Finally, the competent opinions state that the Veteran's current heart conditions do not relate to his active military service. No provider has stated that the Veteran has a current cardiac disorder which is linked to his military service. Private treatment records and VA outpatient treatment records spanning several decades do not suggest any possible relationship between his current conditions and his active military service. Also, according to the May 2010 VA examiner, the Veteran's heart condition was not related to military service, but more likely related to his significant obesity and an inherited condition from his mother. As such, the preponderance of the clinical evidence of record is unfavorable to the Veteran's claim and demonstrates that the Veteran is not entitled to service connection for a heart condition. The Board notes that the Veteran believes he suffers from a heart condition that manifested during, or as a result of, his active military service. However, VA has received no evidence to suggest that the Veteran is competent to offer such a complex medical opinion. See Routen, 10 Vet. App. at 186; see also Bostain, 11 Vet. App. at 127 (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). The Board also recognizes that the Veteran has alleged chronic symptomatology of a heart condition since his separation from active duty. The Veteran's wife also submitted a statement in May 2007 indicating that she was aware of the Veteran's heart problems since 1960 and that they seemed to worsen in the 1970s. Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence). However, while the Veteran and his wife are competent to testify to the existence of symptomatology, the Board does not find the assertions to be credible. In his December 1981 letter, Dr. H made no mention that the Veteran had reported a history of heart symptomatology spanning several decades. The Veteran also testified about his condition for the SSA in February 1985 and made no reference to a heart condition prior to 1980. Dr. H also provided extensive testimony to the SSA in September 1987 regarding the Veteran's heart conditions, but again, did not reference cardiac symptomatology prior to 1980. The Board finds that the records dated from 1980 to 1990 are entirely unfavorable to the Veteran's claim, and are much more probative than the statements made by the Veteran in connection with the claim on appeal. Finally, while the Veteran referred to this as an ongoing problem in his original claim of January 2002, the Veteran indicated that his actual heart condition, diagnosed as Wolf-Parkinson-White syndrome (also known as sudden death syndrome) did not begin until December 1980. In light of these facts, the Board does not find the more recent statements regarding chronic symptomatology since 1959 to be credible. The Board has also considered the Veteran's contention that an event or injury occurred in service that resulted in a chronic heart disability. Regardless of the weight given to the Veteran's assertions, there is simply no evidence to support such contention, and there is no clinical evidence to establish or which tends to support a contention that an event or injury occurred in service that resulted in a chronic heart disability. As a final matter, the Board notes that the Veteran suggested during his May 2010 VA examination that his heart problems began as a child. However, this assertion fails to demonstrate that consideration of aggravation of a preexisting disability is necessary. The Veteran's heart was found to be normal at the time of enlistment and the Veteran made no reference to a preexisting heart condition. At the time of a service entrance examination, every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or, where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. The Veteran's current statements of a heart condition as a child do not rebut the presumption of soundness. Lay statements by an appellant concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The service treatment records are unfavorable to the Veteran's claim on any basis. Post-service clinical records which reflect that the Veteran first sought medical treatment for a cardiac disorder about 20 years after his service discharge establish that the Veteran did not have a chronic cardiac disorder or chronic cardiac symptoms following service or proximate to service. The clinical evidence establishes that there is no causal or etiologic relationship between the Veteran's service and a current cardiac disorder. The post-service clinical evidence is entirely unfavorable to a finding that the lay assertions of the Veteran or his spouse are credible. Given the absence of credible evidence to support the claim, the Board finds that the preponderance of the evidence is again the claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a heart disorder must be denied. ORDER Entitlement to service connection for a heart disorder is denied. ____________________________________________ Tresa M. Schlecht Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs