Citation Nr: 1125822 Decision Date: 07/08/11 Archive Date: 07/15/11 DOCKET NO. 99-13 211 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a heart disorder, including dilated congestive cardiomyopathy and mitral valve prolapse. 2. Entitlement to a permanent and total disability rating for nonservice-connected disability pension benefits. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his father FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The appellant was on active duty for training from March 4, to July 6, 1998, and was given an uncharacterized discharge. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 1999 decision by the RO which denied the benefits sought on appeal. In May 2003, the appellant testified at a hearing before the undersigned at the RO. The Board remanded the appeal for additional development in April 2004 and January 2008. FINDINGS OF FACT 1. All available evidence necessary for adjudication of this claim have been obtained by VA. 2. The appellant is not shown to have a heart disorder, including dilated congestive cardiomyopathy and mitral valve prolapse at present which is related to service. 3. The appellant did not have qualifying active service for purposes of VA nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The appellant does not have a heart disorder, including dilated congestive cardiomyopathy and mitral valve prolapse due to disease or injury which was incurred in or aggravated by service nor may any current hypertension be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 101(24), 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.1, 3.6, 3.159, 3.303 (2010). 2. The criteria for basic eligibility for non-service-connected disability pension benefits have not been met. 38 U.S.C.A. § 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3, 3.6 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2010). This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the appellant's claim was received by VA prior to the enactment of VCAA, and he was not provided with appropriate notice concerning VA's duty to assist in the development of his claim prior to adjudication of the issues. However, this is not prejudicial to the appellant, as he was subsequently provided adequate notice, the claims were readjudicated, and supplemental statements of the case (SSOC) were promulgated, most recently in December 2010. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, based on his contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. The appellant's service treatment records and all VA and private medical records, including more than three volumes (claims files) of medical records from the Social Security Administration were been obtained and associated with the claims file. The appellant also testified at a hearing at the RO before the undersigned member of the Board in May 2003. Further, neither the appellant nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the appellant's appeal. Service Connection: In General Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that he still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Id. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Id. at 1337. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Medical evidence of a "chronic" disease should set forth the physical findings and symptomatology elicited by examination within the applicable period. 38 C.F.R. § 3.307(b); Oris v. Derwinski, 2 Vet. App. 95, 96 (1992). A chronic disease need not be diagnosed during the presumptive period but characteristic manifestations thereof to the required degree must be shown by acceptable medical and lay evidence followed without unreasonable time lapse by definite diagnosis. 38 C.F.R. § 3.307(c); Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991). An important factor in the factual question of reasonableness in lapse of time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) is the difficulty in diagnosing the disability and the strength of the evidence establishing an identity between the disease manifestations and the subsequent diagnosis. A strong evidentiary link tends to ensure the disease is not due to "intercurrent cause" as set forth in 38 C.F.R. § 3.303(b); Cook v. Brown, 4 Vet. App. 231, 238 (1993). The lapse in time from manifestation to diagnosis under 38 C.F.R. § 3.307(c) "is ultimately a question of fact for the Board to address." Bielby v. Brown, 7 Vet. App. 260, 266 (1994). Heart Disorder Initially, it should be noted that the Board has thoroughly reviewed all the evidence in the multiple volumes of the appellant's claims files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The appellant contends that he developed heart problems, including cardiomyopathy and mitral valve prolapse from a virus he contracted during his initial period of active service training, and that he was subsequently discharged from service due to a heart condition. He asserts that he has had chronic symptoms of heart disease and cardiomyopathy since service and believes that service connection should be established for his heart problems. Initially, the Board notes that while the appellant is competent to report his symptoms, he is not a medical professional competent to offer an opinion as to the nature or etiology of any current claimed disability. Savage v. Gober, 10 Vet. App. 488, 495; Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (lay testimony is not competent to establish, and therefore not probative of, a medical nexus). Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In this case, the service records showed that the appellant began basic training on May 29, 1998, and was seen on sick call on June 19, 1998, for multiple symptoms, including chest pains, shortness of breath, sore throat, body aches and the chills of one week duration. On examination, his blood pressure was 114/65 and 111/62, and heart sounds were normal. The assessment was cold symptoms. He was given medications, and placed on light duty for three days. An EKG at that time showed normal sinus rhythm, but with evidence of possible right atrial enlargement. Bacteriology studies (24 and 48-hr cultures) for strep throat were normal. The diagnosis on an Entrance Physical Standards Board Proceeding evaluation report, dated in June 1998 was chest pain with EKG evidence of dilatation (right atrial enlargement). The examiners recommended that the appellant be separated from military service for failure to meet the medical procurement standards, and he was discharged from service on July 6, 1998. Subsequent comprehensive evaluations by VA in 1998 and 1999, showed no evidence of any cardiovascular abnormalities. All laboratory and diagnostic studies, including stress thallium test, echocardiography, EKG, and chest x-rays studies in October 1998, were within normal limits and showed no evidence of heart enlargement. The appellant was able to do 12 METs of workload and achieved 102 percent of maximum predicted heart rate on an exercise tolerance test, though he apparently experienced some persistent resting tachycardia and was started on beta blockers. A VA cardiovascular work-up in August 1999, including an EKG, showed normal sinus rhythm and no evidence of right or left ventricular or atrial enlargement. The examiner noted a questionable history of hypertension, and opined that he did not see any evidence of a heart abnormality. He commented that the appellant may have had pericarditis/myocarditis secondary to a viral etiology in 1998, which could have started his bouts of chest pain and the right ventricular dysfunction, but that he could not say for sure whether that was so without reviewing the echocardiography study from 1998. In any event, the examiner opined that the appellant's current chest pains were almost certainly noncardiac in nature and were due to his anxiety and panic disorder problems. Subsequent records show that when seen by VA in October 1999, there was a reported history of hypertension which was reasonably controlled with medication. When seen by a nurse practitioner in January 2000, the appellant reported that he was diagnosed with post-viral cardiomyopathy in service in July 1998. On examination, the Appellant's blood pressure was 142/100 and 130/92; all other clinical cardiac findings were within normal limits. The impression included hypertension, and the appellant was scheduled for additional cardiac workup. A "technically mildly limited" echo cardiology study in April 2000, revealed mild concentric hypertrophy of the left ventricle, but was otherwise within normal limits. The examiner commented that compared to the echocardiography study in October 1998, there were no significant changes. A letter from the cardiologist who conducted the appellant's EKG at Moncrief Army Community Hospital in July 1998, associated with records received from the Social Security Administration (SSA) in March 2002, reported that the appellant was separated from service because of chronic exertional dyspnea. The physician noted that while an EKG showed right atrial enlargement, all other tests, including an echodoppler were normal and did not confirm the presence of any chamber enlargement. He went on to explain that this was an echocardiographic phenomenon that is sometimes seen in young adults and was not indicative of cardiac pathology. Based on the evaluation at that time, there was no evidence for cardiomyopathy. Additional private treatment records, received from SSA in March 2002, showed that the appellant was evaluated for Home Health Aid services in January and February 2002. All clinical cardiac findings were within normal limits and there was no diagnostic evidence of any cardiac abnormalities. An EKG showed no evidence of ischemic changes, Doppler echo was normal and showed normal left ventricular systolic and diastolic function. A chest x-ray was reportedly normal. The appellant was also evaluated by a private physician in connection with his claim for SSA disability benefits in May 1999. A report received from SSA in March 2002, included a discussion of the appellant's medical history and referred to the various diagnostic studies mentioned above. The physician indicated that the recent stress test was not valid as the appellant was not motivated and the low "HR" was indicative of poor effort and not consistent with the treadmill stress test of October 1998, which showed a normal aerobic capacity for his age. The physician opined that there was a large psychogenic/depressive overlay and that there was no cardiac impairment/restriction or limitation. Thereafter, a private chest x-ray study in September 2004, indicated that there was no evidence of acute cardiopulmonary disease. Likewise, a private CT chest scan and echocardiography study in November 2006 were within normal limits and showed no evidence of heart enlargement. The echo study showed the left and right ventricular and atrial chambers and the aortic root were normal in size and function, and the mitral, tricuspid, aortic and pulmonic valves were normal with no evidence of regurgitation. In March 2009, the appellant was convicted of a felony and sentenced to a minimum of two years and four months of incarceration. Medical records from Collins Correctional Facility in February 2010, showed treatment for various maladies and included a history of hypertension and cardiomyopathy. However, none of the reports showed or otherwise indicated that the appellant was actually evaluated for any cardiovascular problems or underwent any diagnostic cardiac studies. Service connection requires 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 - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). The Board also must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the evidence showed that while the appellant was thought to have some right atrial enlargement on an EKG during his initial period of active duty training in 1998, additional comprehensive evaluation and diagnostic studies showed no evidence of cardiomyopathy or valvular heart disease in service. Further, the appellant was evaluated by VA on numerous occasions since his discharge from service and was not shown to have cardiomyopathy or valvular heart disease. While a diagnosis of cardiomyopathy was recorded on several medical reports since service, those diagnoses were based on the appellant's self-described medical history and not on any objective clinical findings or diagnostic studies. At this point, the Board notes that in October 1999, the appellant submitted a copy of a letter, reportedly from a physician who evaluated him in service, in which it was asserted that the appellant was discharged due to "permanently and progressive disabling heart condition" caused by an unknown virus infection "that attacked his heart causing a permanent disabling cardiomyopathy." The letter stated that an EKG and echocardiography showed an enlarged right atrium and "a complete loss of 30 percent blood fill which would normally pass on oxygenated blood to the lungs, brain, and other major organs of the body" The letter concluded that the appellant's disability was directly related to a viral infection contracted in service. The letter closed with the statement, "I am also the physician who initiated the claimants discharge paperwork." Following receipt of the above letter, the RO, suspecting that the letter was a forgery, sought confirmation of authenticity from the healthcare provider himself, in November 1999, but did not receive a response. In March 2010, the RO notified the appellant that it had attempted to authenticate the letter from the healthcare provider but did not receive a response and requested that he submit the original letter to VA. However, the appellant did not respond to the request or provide the original letter. As to the letter submitted by the appellant, the Board notes that the signature title on the document was indicated as "MD." However, the actual person that the letter is purported to be from is a physician's assistant and not a medical doctor. As such, he would have signed his name - as he did on the service treatment records - with the honorific of "PAC" and not "MD." Furthermore, the medical information described in the letter was factually inaccurate, to the extent that there was nothing in the service records which even remotely suggested that the appellant suffered a viral infection or that he had a "permanent disabling cardiomyopathy." On the contrary, the service and post service treatment records showed no evidence of cardiomyopathy or valvular heart disease. Finally, the Board notes that while the physician's assistant evaluated the appellant one time in service, his name does not appear on any of the medical reports generated in connection with his discharge proceedings. Based on the discussion above, the Board finds that the copy of the letter submitted by the appellant is of questionable authenticity and, therefore, has no probative value. In February 2002, the appellant submitted a statement in support of claim (VA Form 21-4138) signed by a private physician, Dr. J. Dolorico to the effect that the appellant was diagnosed with "dilated congestive cardiomyopathy" in service. While the signature on the document appears to be that of Dr. Dolorico (comparing her signature to other medical reports of record), the body of the letter is conspicuously similar to the appellant's handwriting. Moreover, the name and social security/claim number of the individual identified at the top of the document was that of another individual and was scratched out and the appellant's name and social number inserted in what appears to be the appellant's own handwriting. Thus, the Board has serious reservations as to the authenticity of this document. Additionally, the Board notes that the actual treatment records of Dr. Dolorico showed that she evaluated the appellant for his alleged cardiovascular problems and that all diagnostic studies, including an EKG, Doppler echocardiography and chest x-ray study failed to reveal any evidence of cardiomyopathy, valvular heart disease or any other cardiovascular disease. In any event, as the letter did not include any discussion or analysis of the facts or offer any explanation for the purported opinion, the Board finds that the statement is of no probative value and is assigned no evidentiary weight. Lastly, the Board considered the numerous letters from friends, family members, and a vocational rehabilitation counselor to the effect that the appellant suffered from cardiomyopathy and valvular heart disease which was contracted in service. However, as neither the appellant nor the lay people are shown to have any educational training or experience in the field of medicine, their opinions as to the etiology of the appellant's symptomatology is of no probative value. Bostain v. West, 11 Vet. App. 124, 127 (1998) (lay testimony is not competent to establish, and therefore not probative of, a medical nexus). In light of the above discussion, and the absence of any corroborating competent medical evidence, the Board declines to place any evidentiary weight on the lay statements. As there is no credible, competent medical evidence of a cardiovascular disease or disorder, including cardiomyopathy and valvular heart disease in service or at present, the record affords no basis for a favorable disposition of the appellant's appeal. Accordingly, the Board finds that the preponderance of the evidence is against the claim of service connection for a heart disorder, including dilated congestive cardiomyopathy and mitral valve prolapse. The benefit of the doubt has been considered, but there is not an approximate balance of positive and negative evidence regarding the merits of the issue on appeal. Therefore, that doctrine is not for application in this case because the preponderance of the evidence is against the Appellant's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Pension Eligibility Under VA regulations, the payment of nonservice-connected pension benefits is provided to veterans (emphasis added) who are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, but only where the veteran has the requisite active wartime service. 38 U.S.C.A. § 1521(a) (West 2002); 38 C.F.R. §§ 3.3, 3.314(b) (2010). A veteran means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes active duty, and any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Active duty means full-time duty in the Armed Forces other than active duty for training. 38 C.F.R. § 3.6(b). Active duty for training means full-time duty in the Armed Forces performed by Reserves for training purposes. § 3.6(c). A veteran meets the service requirements of that section if he or she served in active military, naval or air service: (1) for ninety days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of ninety consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. 38 U.S.C.A. § 1521(j) (West 2002); 38 C.F.R. § 3.3(a)(3) (2010); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Fischer v. West, 11 Vet. App. 121, 123 (1998); see also 38 U.S.C. § 1522. The term "period of war" is defined to include the Persian Gulf War, and the period beginning on the date of any future declaration of war by Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C. § 101(11); see also 38 U.S.C. § 101(6)-(10), (29), (30), (33) (defining the time period for each identified period of war); 38 C.F.R. § 3.2 (2010). In this case, while the appellant's DD 214 showed that he served four months and three days during the Persian Gulf War period, his service was active duty for training in the Reserves. Therefore, in order to satisfy the criteria for veterans status, the evidence must also show that he was disabled or died from a disease or injury incurred or aggravated in the line of duty, or that he was discharged from service due to a service-connected disability. Here, the appellant was neither disabled by or discharged from service due to disease or injury incurred in or aggravated by service. Thus, the appellant is not a veteran for purposes of VA benefits, and does not meet the eligibility criteria for nonservice-connected pension benefits. As such, the appeal is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive of a claim, such claim should be denied because of the absence of legal merit or the lack of entitlement under the law). ORDER Service connection for a heart disorder, including dilated congestive cardiomyopathy and mitral valve prolapse is denied. Entitlement to nonservice-connected disability pension benefits is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs