Citation Nr: 1218436 Decision Date: 05/23/12 Archive Date: 05/31/12 DOCKET NO. 07-21 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for cardiomyopathy. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to January 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in September 2008. The Board remanded the current issue to the RO in September 2010. At the time, the Board denied a rating exceeding 10 percent for hypertension. FINDINGS OF FACT 1. The Veteran's cardiomyopathy was not manifest in service and is not otherwise causally related to service. 2. The Veteran's cardiomyopathy was not caused by, or aggravated by, his service-connected hypertension. CONCLUSION OF LAW The criteria for service connection for cardiomyopathy are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA 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 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran pre-adjudication notice by a letter dated in January 2006. The notification complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004). While the notification did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, as is required by Dingess, the Board notes that the RO sent the Veteran a July 2006 correspondence that fully complied with Dingess. VA also has a duty to assist a claimant under the VCAA. VA has obtained service treatment records; assisted the Veteran in obtaining evidence; afforded the Veteran examinations in May 2006 and January 2010; obtained medical opinions as to the etiology and severity of disabilities; and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The RO's actions on remand complied with the remand orders by obtaining VA medical records and examining the Veteran. VA has complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Cardiomyopathy The Veteran's appeals the RO's July 2006 decision denying service connection for cardiomyopathy. 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. § 1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service 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. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran has cardiomyopathy, as reflected by the January 2010 VA examination report. However, service medical records do not show that it was manifest in service and no evidence relates it to service. It appears to have first manifested many years after service. Moreover, the preponderance of the evidence indicates that it was not caused or aggravated by the Veteran's service-connected hypertension. A VA examiner in May 2006 stated that an opinion on the matter of service relationship without resort to speculation. This opinion appears inadequate and will not be considered by the Board. However, at a January 2010 VA examination, the examiner reviewed the Veteran's claims folder and considered his history and examined him and found that he had normal wall thickness as shown by an echocardiogram in December 2005. The examiner indicated that it was less likely than not that the Veteran's cardiomyopathy was secondary to his service-connected hypertension. He noted the echocardiogram findings and noted that the Veteran had dilated cardiomyopathy, the gross majority of cases of which were due to familial/genetic, viral, alcohol, or idiopathic etiologies. He stated that hypertension was a rare cause of cardiomyopathy and that when it was, it was usually the hypertrophic type. Because the Board questioned whether the January 2010 opinion adequately covered the matter of secondary service connection by aggravation, the case was remanded the case to the RO in September 2010 for clarification. A December 2010 addendum was issued to the effect that the examiner could not speculate as to whether the Veteran's hypertension had aggravated his cardiomyopathy. The reason for this opinion was that there was no convincing evidence in the literature indicating that hypertension adversely affects dilated cardiomyopathy. Based on the evidence, the Board concludes that service connection is not warranted for cardiomyopathy under any theory. It was not manifest in service, and no evidence relates it to service. Moreover, the examiner in January 2010 indicated that the Veteran's cardiomyopathy was less likely than not caused by his service-connected hypertension, and the December 2010 addendum indicated that an opinion regarding aggravation by the hypertension could not be given without resort to speculation. The examiner explained that there is no convincing evidence in the literature indicating that hypertension adversely affects dilated cardiomyopathy. In considering whether the medical opinions are adequate, the Board acknowledges the Court's holding in Jones v. Shinseki, 23 Vet.App. 382 (2010). The Court indicated that that a medical finding that "a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion . . . however, the examiner must explain the basis for such an opinion or the basis must otherwise be apparent in the Board's review of the evidence." Id. at 390. After reviewing the opinions, the Board finds that they meet the Jones requirement regarding explaining the basis for the opinions. The reasons the examiners gave were that the Veteran had a dilated cardiomyopathy and that the gross majority of dilated cardiomyopathy were due to other causes. When hypertension causes cardiomyopathy, it is usually a hypertrophic cardiomyopathy that it causes, and the Veteran has dilated cardiomyopathy, not hypertrophic cardiomyopathy. Also, there is no convincing evidence in the literature indicating that hypertension adversely affects dilated cardiomyopathy. The Board feels that the opinions above and the reasons they give collectively are adequate to support the conclusion of the examiners that the Veteran's dilated cardiomyopathy was not at least as likely as not caused or aggravated by his service-connected hypertension. The Veteran testified in September 2008 that his hypertension had caused his cardiomyopathy. However, the question involved is strictly medical in nature, and as a layperson he is not competent to address this question. Medical evidence is required. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Derwinski, 5 Vet. App. 91, 93 (1993). The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). ORDER Service connection for cardiomyopathy is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs