Citation Nr: 1126557 Decision Date: 07/14/11 Archive Date: 07/21/11 DOCKET NO. 09-50 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for abdominal aortic aneurism, claimed as heart condition, to include as due to the service connected posttraumatic stress disorder (PTSD) and hypertension. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The appellant had active service from May 1953 to February 1960. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of September 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Board remanded the claim in August 2010 and December 2010 for further development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. An abdominal aortic aneurysm was not manifest in service or within a year form service and is not otherwise related to service. 2. The service connected hypertension contributed minimally to the development and aggravation of the abdominal aeortic aneurysm but not enough to change the pre-aggravation baseline. 3. The service connected PTSD did not contribute to the development or aggravate the abdominal aortic aneurysm. CONCLUSION OF LAW 1. An abdominal aeortic aneurysm was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. An abdominal aeortic aneurysm is not proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA 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 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the 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. The Board notes that a copy of the VCAA notice letter is not of record. However, the Statement of the Case (SOC) of November 2009 notes that a VCAA notice letter was sent in April 2008. There is a rebuttable "presumption of administrative regularity" under which it is presumed that government officials have properly discharged their official duties, including mailing notices. See Clark v. Principi, 15 Vet. App. 61, 63 (2001). The entry in the SOC serves as an indicia that the letter was sent. Moreover, the Board notes that the appellant has a representative and, neither him or his representative have at any time stated they were not aware of the evidence needed to substantiate the claim. As there is no "clear evidence" that either VA's mailing practices were not regular or that its regular mailing practices were not followed, the Board presumes that the appellant was notified of the VCAA requirements. See Davis v. Principi, 17 Vet. App. 29 (2003); Mindenhall v. Brown, 7 Vet. App. 271 (1994). Moreover, applying the presumption of regularity it is presumed the letter provided information as to what evidence was required to substantiate the claim, and of what evidence was to be provided by the appellant and what evidence the VA would attempt to obtain on his behalf. The Board notes that notice as to the effective date and disability rating was provided in an October 2008 letter. While the letter did not predate the rating decision, the appellant was given the opportunity to submit additional evidence and the claim was readjudicated in a SOC of November 2009, and subsequent Supplemental Statements of the Case of October 2010 and March 2011. Therefore, the appellant has not been prejudiced by the timing error. 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 (20100). Service medical records and outpatient medical records have been obtained. The appellant was afforded a VA examination. The same was adequate in that the examiner reviewed the claim file, interviewed the appellant, considered the appellant's reported history, conducted an evaluation of the appellant, provided clear findings and provided a rationale for his opinion. The Board notes that not all service treatment records have been associated with the claim file. A copy of the separation physical of November 1959 is of record. The record reflects that service treatment records for all periods of service were requested in December 1995. At the time, in a reply from the National Personnel Service Center (NPRC) of February 1996, available treatment records were provided which included a treatment record for malaria of January 1952 and a report by the Office of the Surgeon General of the Army for the year 1951. A second request for service treatment records was submitted in January 1996. In May 1996, the NPRC replied that all the medical records that were on file had been already been forwarded to the RO in February 1996. The RO has made multiple attempts to obtain the complete service treatment records. However, no records have been located. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, the Board finds that the VA has satisfied its duties to notify and to assist the claimant in this case. No further assistance to the appellant with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Based on the foregoing, adequate notice was provided to the appellant prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Legal Criteria and Analysis Veterans are entitled to compensation from VA if they develop disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(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). Holton v. Shinseki, 557 F.3d 1362 (C.A. Fed. 2009) (March 5, 2009). The absence of any one element will result in the denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service- connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled "Disabilities that are proximately due to, or aggravated by, service-connected disease or injury." Paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added, which states: (b) Aggravation of nonservice-connected disabilities. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. The Board notes that in the current case, the applicable version of 38 C.F.R. § 3.310 is the amended version as the appellant filed his claim in February 2008. This version is more restrictive than the pre-existing version and requires the establishment of a baseline before an award of service connection may be made. The appellant has appealed the denial of service connection for abdominal aortic aneurism (AAA). After a careful review of the evidence of record, the Board finds that service connection is not warranted for abdominal aortic aneurysm. As noted above, not all service treatment records are available. However, a copy of the separation examination of November 1959 is of record. The examination shows the appellant's heart and vascular systems to be normal. While the abdomen and viscera were noted as abnormal, it was explained as bilateral oblique 5 inch herniorrhaphy scars. It was noted that he had recent trouble with nervous indigestion. However, he had a normal upper GI series and had been treated with Donnatal. It was noted not to be disabling. No sequela was noted. Therefore, there is no evidence of an AAA in service. Private treatment records of June 1984 show chest x-rays were normal. Other records dated that same month note the heart size and sounds were normal. A VA examination report for unrelated disabilities noted the heart sounds, rate and rhythm to be normal. There were no murmurs. The left border of cardiac dullness was at the midclavicular line. VA outpatient treatment records of October 2002 note x-ray findings suggestive of an AAA. In November 2002, an AAA was confirmed. In February 2008, the appellant underwent an AAA repair. A VA medical opinion was obtained in September 2008. The examiner reviewed the service treatment records and VA treatment records. The examiner noted that the appellant was checked for an AAA after his brother died of an AAA about four years ago. The examiner stated that the appellant's abdominal aortic aneurysm (AAA) is likely hereditary in nature and that hypertension is likely to worsen and speed the development of his AAA to the point of requiring surgery. Therefore, it is at least as likely as not that the appellant's AAA was aggravated by his hypertension for many years. However, the examiner stated that she could not state without mere speculation what the baseline manifestations of the appellant's AAA would be due only to his genetic predispositions, without the hypertension, nor what increased manifestations are proximately due to his hypertension as these procedures develop synergetically. She further stated that it is impossible to know how his AAA would have progressed over the years without the aggravation of hypertension. In September 2010, the Board remanded the claim for a VA opinion by a cardiovascular specialist regarding the etiology of the appellant's AAA. In September 2010, an opinion was obtained by a general practitioner. He reviewed the claim file including service treatment records and VA outpatient treatment records. After noting the medical history, the examiner stated that the most common risk factor in developing an AAA are hereditary factors, tobacco smoking, age older than 60, white race and atherosclerosis. Regarding the appellant's AAA, the examiner stated that the specific cause was not knowable, but the most likely factors in the development and progression of the appellant's AAA were the positive family history, tobacco smoking, age greater than 60, his sex and his race. He opined that there was no evidence in the medical literature to support the contention that the appellant's AAA was caused or aggravated by his service connected PTSD or hypertension, therefore AAA is less likely as not caused by or the result of the service connected PTSD and/or hypertension. As the September 2010 opinion was not by a specialist, the Board remanded the claim once again in December 2010 for an opinion by a cardiovascular specialist. In February 2011, an opinion was obtained from a certified cardiovascular surgeon. He stated he had reviewed the claim file. He stated that there are multiple causes for AAA and in an individual it is usually impossible to determine which factor(s) is the cause of the individual's aortic aneurysm. The highest risk factor is smoking. Other major risk factors include family history, advancing age, coronary artery disease, high cholesterol, chronic obstructive pulmonary disease, cerebrovascular disease and hypertension. Regarding the appellant's AAA, he stated that it is impossible to determine a single cause of the appellant's AAA. The appellant has multiple risk factors associated with the development of an AAA including smoking, family history, advanced age, coronary artery disease, high cholesterol, and hypertension. He stated he felt that all these factors contributed to the appellant's AAA and that the single most important factor is smoking, with the others following in importance in the order listed. Regarding as to whether the appellant's AAA was caused or aggravated by his service connected PTSD the examiner stated that the appellant's AAA was not caused or aggravated by the service connected PTSD or hypertension. He stated that he did not feel that the appellant's hypertension is a major aggravating factor of the AAA, but it could be a minor aggravating factor which would be less important than all other factors listed previously. Regarding the baseline of aggravation, the examiner stated that it is his best medical opinion that there would be no change in the pre-aggravation baseline of the appellant's AAA due to the service connected hypertension. He reasoned that any contribution of the hypertension would be minimal and would not have affected the development of the AAA, the gradual enlargement of the AAA or the need for treatment of the AAA. As an initial matter, the Board notes that the appellant has not alleged that the claimed disability was incurred in combat. Therefore, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not for application. Furthermore, the Board notes that the appellant has alleged that he is a Prisoner of War (POW). Indeed, in a statement of January 1998, he stated that on December 24 or 26, 1950 near Seoul, Korea, he had been captured by the North Koreans and they pulled his big toenails out in order to make him talk. He further stated he had escaped after seven hours. In May 1998, the RO requested that the appellant's status as a POW be verified. In June 1998, the NPRC replied that they were unable to verify the POW dates. As the appellant's claims of POW status have not been verified, the provisions of 38 C.F.R. §§ .307 and 3.309 are not for application. Regardless, the evidence does not show that a cardiovascular disease manifested to a degree of 10 percent within a year of separation form service. As noted, the available service treatment records are completely silent for any complaints of or treatment for an AAA. Moreover, a discharge physical of November 1959 noted the appellant's heart and vascular systems to be normal. While the abdomen and viscera were noted as abnormal, it was explained as bilateral oblique 5 inch herniorrhaphy scars. It was noted that he had recent trouble with nervous indigestion. However, he had a normal upper GI series and had been treated with Donnatal. It was noted not to be disabling. No sequela was noted. Therefore, there is no evidence of an AAA in service. Moreover, there is no evidence of an AAA within one year from service. Indeed, the first documented evidence of an AAA is not until 2003 more than 50 years after discharge from service. However, this does not in itself preclude a grant of service connection. Again, service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2010). Nevertheless, a review of the evidence leads to the conclusion that the claimed AAA is not related to a service-connected disease or injury for the reasons discussed below. As noted, the applicable version of 38 C.F.R. § 3.310 is the amended version as the appellant filed his claim in February 2008. This version is more restrictive than the pre-existing version and requires the establishment of a baseline before an award of service connection may be made. Regarding whether the appellant's AAA is due to or has been aggravated by the service connected PTSD, the Board notes that there is no competent evidence of a nexus between the AAA and the service connected PTSD. Indeed, all of the VA medical opinions of record state that the appellant's AAA was not aggravated by his service connected PTSD. The September 2008 examiner explained that the appellant's AAA was more likely hereditary in nature. The September 2010 examiner stated that there is no medical literature to support the contention that the appellant's AAA was caused by or aggravated by his PTSD. Finally, the February 2011 examiner stated that the appellant's AAA was not caused by or aggravated by the service connected PTSD. These opinions stand uncontradicted by any other competent evidence of record. They were provided after a review of the claim file and the medical records therein. Moreover, the September 2010 examiner provided a rationale and basis for his opinion. As such, the Board finds the opinions to be competent and reliable and affords them great probative weight. In regards as to whether the appellant's AAA was caused by or aggravated by the service connected hypertension, the Board finds that the evidence is insufficient to support service connection. While it is not in dispute that all of the medical opinions of record establish that hypertension contributed to the AAA, no aggravation of the baseline is of evidence. Indeed, the February 2011 examiner opined that there would be no change in the pre-aggravation baseline of the appellant's AAA due to his service connected hypertension. He reasoned that any contribution of the hypertension to the AAA would be minimal and would not have affected the development of the AAA, the gradual enlargement of the AAA or the need for treatment of the AAA. He further stated that the single most important factor in the development of his AAA was the appellant's smoking and hypertension was the least contributing risk factor. The Board is cognizant that, under the applicable regulation, the establishment of a pre-aggravation baseline is required prior to deciding the claim. In the instant case, a specific pre-aggravation baseline has not been provided. However, the February 2011 examiner stated that hypertension would not cause any change in the pre-aggravation baseline. Therefore, a specific baseline is not necessary in the instant case. While it has been stated that hypertension contribute to the appellant's AAA, it has been noted that the contribution was so minimal that there would be no change in the pre-aggravation baseline. As compensation can only be established for the degree of disability over and above the degree of disability existing prior to the aggravation, and the competent and reliable evidence of record shows that there is no change in the pre-aggravation baseline, service connection for AAA as due to the service connected hypertension cannot be conceded. The Board has considered the lay evidence of record, in particular the appellant's statements that his AAA was aggravated by his PTSD. In considering the lay evidence, the Board notes that the appellant is competent to give evidence about what he has experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held that in certain situations, lay evidence can even be sufficient with respect to establishing medical matters such as a diagnosis. Specifically, in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit commented that competence to establish a diagnosis of a condition can exist when (1) a 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. However, the Board finds that the question of the etiology of the appellant's AAA is one that requires specialized training and expertise and the appellant is not competent to render an opinion regarding the same. In conclusion, the preponderance of the evidence is against the claim, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for abdominal aortic aneurism, claimed as heart condition, to include as due to the service connected posttraumatic stress disorder (PTSD) and hypertension is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs