Citation Nr: 1110812 Decision Date: 03/18/11 Archive Date: 03/30/11 DOCKET NO. 09-16 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for the residuals of a stroke, to include as secondary to service-connected diabetes mellitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD R. Erdheim, Associate Counsel INTRODUCTION The Veteran had active service from May 1968 to March 1970. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the residuals of a stroke to include as secondary to service-connected diabetes mellitus. FINDING OF FACT The Veteran's stroke was first manifested many years after his separation from service, and is not shown to be causally or etiologically related to service or the service connected diabetes mellitus. CONCLUSION OF LAW Residuals of a stroke were not incurred in or aggravated during active service, may not be presumed to have been so incurred, and are not proximately due to or the result of a service connected disease or injury. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in October 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this regard, all relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. VA has also obtained a medical examination in relation to this claim. In addition, the Veteran and his representative have not 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 Veteran's appeal. The Veteran contends that the strokes that he suffered in 2004, and any residuals thereof, are either related to his service in Vietnam or, alternatively, was caused or aggravated by his service-connected diabetes mellitus. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for some disorders will be rebuttably presumed if manifested to a compensable degree within a year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed to certain herbicide agents such as Agent Orange. In the case of such a veteran, service connection for listed diseases will be rebuttably presumed if they are manifest to a compensable degree within specified periods. However, a stroke is not one of the listed diseases and the condition is thus not afforded the benefit of presumption. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). The Board accordingly will rate the Veteran's claim for service connection for the residuals of a stroke on a direct and secondary basis. A disability which is proximately due to or the result of a service-connected disease or injury shall be service-connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or disease incurred in service. Establishing service connection on a secondary basis essentially 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 disability. 38 C.F.R. § 3.303, 3.310. Turing to the evidence of record, service treatment records are negative for any complaints, diagnosis, or treatment for a stroke. The records do not reflect that the Veteran suffered from any stroke sings or symptoms and no such findings were recorded. The Board thus finds that chronicity in service is not established in this case. 38 C.F.R. § 3.303(b). As chronicity in service has not been established, a showing of continuity of symptoms after discharge is required to support the Veteran's claim for service connection for the residuals of a stroke. 38 C.F.R. § 3.303(b). Post-service medical records reflect that the Veteran was diagnosed with hypertension in 1996. He was noted to be a chronic heavy smoker, smoking a pack a day for many years. In May 1996, cardiac catherization revealed diffuse three vessel coronary disease. In July 1998, it was noted that his heart disease was being treated with medical therapy due to the non-obstructive nature of the lesions shown on catherization. The Veteran was experiencing atypical chest pains that were treated with a muscle relaxer. He was counseled to stop smoking. In January 1999, the Veteran continued to experience intermittent chest discomfort and shortness of breath, but did not have symptoms of congestive heart failure. His risk factors for heart disease was chronic, heavy cigarette abuse which he had recently discontinued, as well as hypertension, high cholesterol, and a family history of the disease. It was noted that there was no history of diabetes. There was no history suggestive of strokes or a seizure disorder. A stress test was negative for ischemic heart disease. In April 2001, the Veteran reported that in the previous year, he had experienced sudden transient numbness in the hands, nose, and mouth, which had resolved spontaneously. There were no subsequent episodes of a cerebrovascular accident or seizure disorder. A stress test was positive for coronary artery disease with worsening ischemia. He was also noted to carry a diagnosis of hypertension and hyperlipidemia. In April 2004, the Veteran suffered from an ischemic stroke manifested by left-sided facial weakness, tongue numbness, and foot tingling. At the time, he was noted to have a past medical history of angina pectoris, hypercholesterolemia, and hypertension. A complete blood count was taken, and although the results were discussed with regard to cholesterol management, the Board notes that no diagnosis of diabetes mellitus was found or rendered. The first diagnosis of diabetes mellitus is dated in June 2007, based upon elevated glucose levels. In February 2008, the Veteran's private physician submitted a statement that the Veteran's diabetes was a significant factor for his 2004 cerebral vascular episode. On March 2009 VA examination, the examiner physically examined the Veteran and reviewed the Veteran's claim file, including the history of his stroke and cardiovascular disorder, and ultimately determined that the Veteran's stroke was less likely than not caused by or was otherwise related to his diabetes mellitus. The examiner explained that the Veteran's hypertension and history of cigarette smoking were considered to be greater risk factors for a stroke then diabetes under treatment. The examiner felt that while it was not possible to determine to what extent the Veteran's diabetes contributed to his stroke, when taking into consideration his long-standing hypertension and history of smoking, it was less likely that the diabetes was a major contributor to the stroke. First, with regard to entitlement to service connection on a direct basis, the first post-service evidence of the Veteran's strokes is in 2004, approximately 34 years after his separation from service. In view of the lengthy period without treatment, there is no evidence of a continuity of symptomatology, and that weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Service connection may be granted when all the evidence establishes a medical nexus between military service and current complaints. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In this case, the Board finds that the evidence does not establish a medical nexus between active service and the Veteran's stroke. Thus, service connection for a stroke on a direct basis is not warranted. With regard to entitlement to service connection on a secondary basis, an evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, the Board is inclined to place higher probative weight on the March 2009 VA examiner's opinion that the Veteran's stroke was less likely caused by the service-connected diabetes mellitus rather than on the February 2008 private opinion that the diabetes mellitus was a significant factor for his 2004 cerebral vascular episode. For one, the February 2008 physician provided no rationale for the opinion. If the examiner does not provide a rationale for the opinion, this weighs against the probative value of the opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). Significantly, the physician does not account for the significant interim time period between when the strokes occurred, in 2004, and the first diagnosis of diabetes mellitus in 2007. Further, the physician does not discuss the Veteran's other factors for stroke, such as the history of cigarette smoking, hypertension, and high cholesterol. In that regard, the March 2009 VA examiner took into account the Veteran's risk factors in deciding that the diabetes mellitus was most likely not a major factor for the 2004 stroke. In other words, it appears that the VA examiner did not find, within a probability of 50 percent or greater, that the service-connected diabetes mellitus was the cause or contributing factor for the 2004 strokes when reviewing the Veteran's medical history. Rather, as evidenced by the majority of the medical records of record, the examiner found that the extensive history of smoking cigarettes and long-standing history of hypertension were more likely the cause and contributing factors of the 2004 stroke as opposed to the service-connected diabetes mellitus. Accordingly, because the Board finds the 2009 VA examination to be more persuasive in this instance, service connection for a stroke on a secondary basis is denied. The Veteran contends that his current stroke residuals are related to his active service or to his service-connected diabetes mellitus. However, as a layperson, the Veteran is not competent to give a medical opinion on diagnosis, causation, or aggravation of a medical condition. Bostain v. West, 11 Vet. App. 124 (1998); Routen v. West, 142 F.3d. 1434 (Fed. Cir. 1998); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board acknowledges that the Veteran is competent to give evidence about what he experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). While the Veteran is competent to state that he is suffering from the symptoms of a stroke or the symptoms of diabetes mellitus, he is not competent to determine that the symptoms of his stroke were caused by his diabetes mellitus, as that relationship must be made by a medical professional. The weight of the medical evidence indicates that the Veteran's stroke occurred many years after service and was not caused by any incident of service. The Board concludes that the stroke was not caused or aggravated by the service-connected diabetes mellitus. As the preponderance of the evidence is against the claim for service connection, the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of a stroke, to include as secondary to service-connected diabetes mellitus, is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs