Citation Nr: 1125330 Decision Date: 07/05/11 Archive Date: 07/14/11 DOCKET NO. 08-34 163 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from October 1980 to October 2006. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2007 rating decision. FINDING OF FACT The evidence does not show that the Veteran currently has, or had at any distinct time during the course of his appeal, a diagnosed heart disability. CONCLUSION OF LAW Criteria for service connection for a heart disability have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Prior to separation in 2006, the Veteran filed a claim for service connection for a heart condition. He has asserted that he was diagnosed with a heart murmur in service, and he contends that the heart murmur is still present. The Veteran has also complained about chest pain on a number of occasions both during and since service. However, the chest pain was consistently found to be noncardiac in nature; and the Veteran's claim for service connection for chest pain was denied by a March 2010 Board decision. Service treatment records confirm that the Veteran was assessed with both a heart murmur and with sinus arrhythmia while in service. A heart murmur was also noted several times in the post-service treatment records, but it was unclear to the Board whether this was merely the result of the Veteran reporting that a murmur had been noted in the past, or whether it was indicative of a murmur actually being heard at that time. At a VA examination in July 2006, it was noted that thallium stress tests in 2002, 2003 and 2005 had not revealed any ischemia. However, an ECG in January 2002 showed T wave abnormality and it was noted that inferior ischemia and anterolateral ischemia should be considered. Another ECG was conducted in July 2006 where again there was T wave abnormality noted and it was again suggested that lateral ischemia should be considered. Given this evidence, the Board concluded that an additional VA examination was warranted and remanded the Veteran's claim to obtain a medical opinion as to whether the Veteran had a current heart disability. This examination was provided in August 2010. The Veteran reported that while in the military he would wake up with palpitations. However, he stated that at present he would only experience palpitations if he had been through significant exercise. It was noted that the Veteran had had a negative stress test and he denied having ever experienced a myocardial infarction. It was also noted that the Veteran was on continuous medication for hypertension (and the Veteran is service connected for hypertension). At the examination, the Veteran had dyspnea on moderate exertion, but the examiner found no evidence of congestive heart failure or pulmonary hypertension. There were no extra heart sounds and the Veteran had a regular heart rhythm. There also were no abnormal breath sounds on pulmonary examination. The Veteran demonstrated good exercise capacity and had no chest pain. After all the requisite testing was completed, the examiner concluded that the Veteran had essential hypertension, but did not have a diagnosable heart condition. The examiner noted that the stress test was negative. The examiner also stated that the Veteran had undergone extensive cardiac workups and tests since leaving military service, but no heart condition was diagnosed. VA treatment records were reviewed, but they do not show that a heart disability has been diagnosed or is being treated. In making all determinations, the Board must also 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). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, No. 09-3525 (U.S. Vet. App. June 15, 2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. In this case, the Veteran is considered competent to describe symptoms such as chest pain, and as a layperson is considered competent to identify a medical condition where the condition is a simple one, such as a broken leg; however, a lay person is not considered competent to address a complex medical question such as diagnosing a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372. Similarly, diagnosing heart disease is not considered to be a condition where lay observation is competent as it is a complex medical question. Therefore, the Veteran, as a lay person, is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372. As such, while the Veteran asserts that he has a current heart disability, the Board concludes that his statements are simply not sufficiently competent to establish a current heart disability. Accordingly, competent medical evidence is required to substantiate the Veteran's claim. As indicated above, the Board did obtain a VA examination to investigate the Veteran's allegations, but as described, the medical evidence simply fails to establish the presence of a heart disability either currently or at any distinct time during the course of the Veteran's appeal. One of the fundamental criteria of service connection generally is the presence of a current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Based on the evidence as described above, the Board finds that evidence of a present heart disability has not been presented in this case; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Accordingly, the Veteran's claim of entitlement to service connection for a heart disability is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in June 2006, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records and service treatment records have been obtained, and the Veteran has not alleged receiving any private heart treatment. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the most recent VA examination was thorough and adequate and provides a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiner personally interviewed and examined the Veteran, including eliciting a history from him, and provided the information necessary to evaluate his disability. VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a heart disability is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs