Citation Nr: 1125941 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 09-24 765 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from February 1956 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania (RO), in which, the benefit sought on appeal was denied. In May 2010, the Veteran testified before the undersigned during a videoconference hearing. During the hearing, the undersigned identified the issue on appeal and he noted what pertinent evidence was outstanding and might assist in substantiating the claim. Additionally, the Veteran through his testimony, with the assistance of his representative, demonstrated actual knowledge of the elements necessary to substantiate the claim. See Bryant vs. Shinseki, 23 Vet. App. 488 (2010). A copy of the hearing transcript has been associated with the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the medical evidence of record is against a finding that any current heart disorder had its onset in service or within the first year after separation from service, or that it is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the Veteran of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the claimant is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, VA sent a letter to the Veteran in January 2007 that addressed all of the notice elements concerning his claim. The letter informed the Veteran of what evidence is required to substantiate the claim, and apprised the Veteran as to his and VA's respective duties for obtaining evidence. In the notice letter, VA also informed the Veteran how it determines the disability rating and the effective date for the award of benefits if service connection is to be awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board finds that the VCAA duty to notify was fully satisfied as to the Veteran's claims. In addition to its duty to notify, or inform, the Veteran with regard to his claim, VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and records of pertinent medical treatment since service, and providing the Veteran a medical examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, VA has made reasonable efforts to obtain any available pertinent records as well as all relevant records adequately identified by the Veteran. Private treatment records from Dr. F.K.; W.P. Cardiology Associates; W.P. Hospital; and W.P. Internal Medicine were obtained and associated with the claims file. The Board notes that in the instant case, a complete set of the Veteran's service treatment records are unavailable. Following a January 2007 request for records (a PIES request), the RO only received the Veteran's service treatment records from 1956 to 1958. None of the records from his remaining four years of service are available. See July 2007 memorandum to the claims folder. In July 2007, the Veteran was notified of this and asked to submit any records in possession. As of the date of this decision, no additional service treatment records have been received. In the case where the veteran's service medical records are unavailable through no fault of his own, a heightened duty exits to assist the veteran in the development of the case. See O'Hare v. Derwinski, 1 Vet App. 365 (1991); Layno v. Brown, 6 Vet. App. 465, 469 (1994). It is also noted that VA has not afforded the Veteran a comprehensive medical examination relating to his claim for service connection for a heart disorder. Here, the Board finds that such an examination is not necessary to render a decision under the circumstances of this case. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). Under McLendon, in disability compensation claims, 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 the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id., 20 Vet. App. 79. A VA examination under the standards of McLendon is not warranted in this case. While the record reflects current diagnoses for heart disorders, post-service treatment records do not show that the Veteran was first diagnosed or treated for any of his current disorders until five decades after his discharge. Additionally, there is no competent medical evidence that indicates that there "may" be a relationship between the Veteran's current diagnosed disorders and his service. The Board has considered the competent lay statements from the Veteran and his friends, which aver that the Veteran was informed that he had an enlarged heart during his period of service. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). The outcome of this claim, however, hinges on whether the medical evidence indicates that the Veteran had any heart-related problems at that time. Notably, a diagnosis of a heart disorder requires findings from objective diagnostic testing and the interpretation of those findings by someone with medical knowledge. While it may contemplate symptoms that would be capable of lay observation (chest pain, shortness of breath, etc.), the Veteran has not asserted nor do any of the service treatment records contain such inservice complaints that lead to a later diagnosis of a heart disorder. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, none of the available service treatment records shows a diagnosis or treatment for a heart disorder. Moreover, to the extent that the Veteran assert that he was informed by a medical professional that he had enlarged heart at that time, it must be noted that the U.S. Court of Appeals for Veterans Claims has held that a lay person's statement about what a physician told him or her, i.e., "hearsay medical evidence," cannot constitute medical evidence, as "the connection between what a physician said and the layman's account of what he purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute 'medical' evidence." See Robinette v. Brown, 8 Vet. App. 69 (1995). In the absence of evidence of any heart problems prior to 2001, a referral of this claim to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the Veteran's claimed disability and his military service would necessarily be based solely on the Veteran's uncorroborated medical assertions. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised on an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described). Simply stated, referral of these claims for an examination to obtain a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under Mclendon, as here is no showing of element (2) and (3) from the McLendon analysis above - any 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, or that otherwise indicates possible relationships to service. Since there is "no reasonable possibility exists that such assistance would aid in substantiating the claim," a remand for further development is not warranted. 38 U.S.C.A. § 5103A(a)(2). The Veteran has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. See Bernard v. Brown, 4 Vet. App. 384 (1993). For the foregoing reasons, the Board therefore finds that VA has satisfied its duty to notify and its duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103; 38 C.F.R. §§ 3.159(b), 20.1102; Pelegrini, supra; Quartuccio v. Principi, 16 Vet. App. 183 (2002). 2. Service Connection 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; 38 C.F.R. § 3.303(a). 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). In addition, certain chronic diseases, including cardiovascular-renal diseases, may be presumed to have incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309; see also 67 Fed. Reg. 67792-67793 (Nov. 7, 2002). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2008). On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran seeks entitlement to service connection for a heart disorder. He asserts that during his period of service, he underwent a chest x-ray and he was informed that the results from that x-ray showed he had an enlarged heart. The Veteran denies knowledge of any heart problems prior to being informed about his enlarged heart during his period of service. The record also contains several statements from the Veteran's friends, in which they state, that while the Veteran was still on active duty, he told them that he had been informed by a military physician that he had an enlarged heart. While the Board does not doubt that the statements from the Veteran and his friends, that he had been informed that he had an enlarged heart, the fact remains that the claims file is completely devoid of any objective medical evidence of a diagnosed heart disorder until 2001. After a review of the record, the Board finds that the preponderance of the medical evidence is against the Veteran's claim for entitlement to service connection for a heart disorder. There is no medical showing that the Veteran had any heart problems during his period of service. The report of a February 1958 examination shows that the Veteran's heart was evaluated as normal and the findings from a chest x-ray report were negative. All chest x-ray examinations in service from 1956 to 1958 were negative. Further, the post-service records show that the earliest medical record of any heart disorders is not until 2001, almost five decades beyond the one year presumptive period for hypertension. 38 C.F.R. §§ 3.307, 3.309. Records from the W.P. Hospital show a diagnosis of coronary artery disease in December 2001. Private medical records dated in January 2002 and March 2003 show diagnoses of ventricular tachycardia, congestive heart failure, hypertension, and cardiomyopathy. The Board has considered the sworn and credible testimony from the Veteran, averring that during his period of service he was informed by a military physician that the findings from a chest x-ray revealed he had an enlarged heart. As noted above in the Introduction, while the Veteran is competent to report on what he sees and feels, and others are credible to report on what they can see or hear; the evidence does not reflect that any of them are competent to report that the Veteran had heart problems during his period of service. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles, 16 Vet. App. at 374-75; Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Such opinions require medical expertise which the Veteran and his friends have not been shown to have and the type of objective findings required to diagnosis a heart disorder which are not readily observable by a lay person. Id. Further, testimony from the Veteran on what a medical profession told them at that time does not constitute reliable medical evidence. See Robinette, 8 Vet. App. 69. Likewise, the medical statements from Drs. F.K. and L.T.H. are nothing more than a recitation of the Veteran's statements. The fact that the Veteran's statements concerning a history of enlarged heart and traumatic heart-related event in service were transcribed by health care providers does not turn such statements into competent medical evidence. As the Court has noted, "[e]vidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute 'competent medical evidence.'" Leshore v. Brown, 8 Vet. App. 406, 410 (1995). As noted previously, the Veteran's report of heart problems in service, uncorroborated by any medical evidence, does not verify an inservice onset of his current heart problems. While the Veteran's account of this history was noted in both private medical statements, there is no additional medical comment from the medical personnel who created these records and these records do not serve to support the Veteran's contentions. Neither medical statement constitutes competent medical evidence about the onset of the Veteran's current heart disorder. Essentially, this large evidentiary gap between the Veteran's active service ending in 1962 and the earliest objective medical evidence of any heart problems in 2001 goes against the Veteran's claim on a direct basis. A lengthy period without treatment is evidence against a finding of continuity of symptomatology, and it weighs heavily against the claim. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). As the medical evidence does not show that the Veteran's current heart problems were manifested during service or in the first year thereafter, service connection can only be granted if there is some other medical evidence linking the current disability to service. Here, there is no such medical evidence. The evidence of record is not in relative equipoise. The preponderance of the evidence is against the claim for entitlement to service connection for a heart disorder, and the appeal must therefore be denied. 38 U.S.C.A. § 5107(b); Ortiz, 274 F.3d at 1364 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 55-57. ORDER Service connection for a heart disorder is denied. ____________________________________________ C. L. KRASINSKI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs