Citation Nr: 1229034 Decision Date: 08/23/12 Archive Date: 08/30/12 DOCKET NO. 06-21 998 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for residuals of myocardial infarction. 2. Entitlement to service connection for hypertension. WITNESSES AT HEARING ON APPEAL Appellant, Craig N. Bash, M.D. and I.L, an observer ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to March 1986. He also served in the Nevada Army National Guard and Texas Army National Guard through February 16, 2003. This matter comes to the Board of Veterans' Appeals (Board) from a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2008, the Veteran was afforded a videoconference hearing before the a Veterans Law Judge. A transcript of the hearing is of record. That Veterans Law Judge has since retired from the Board. The Veteran was offered the opportunity to testify at another hearing with a Veterans Law Judge who will decide his appeal, but he declined. This matter was last before the Board in April 2010 at which time it was remanded for further development. Prior to April 2010, this matter was also before the Board in September 2009. In this regard, the Board notes that in that remand the Board clarified the matter to include a claim for service connection of hypertension, as the Veteran had all along sought service connection for hypertension and to attribute his myocardial infarction thereto. A claim for service connection of a disorder may be encompassed by several factors, including the claimant's description of the claim, the symptoms the claimant describes and the information the claimant submits or that the secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Notably, in the May 2006 rating decision, the RO considered whether service connection was warranted for any condition of the cardiovascular system. See Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007); see also Deshotel v. Nicholson, 457 F.3d 1258, 1262 (Fed. Cir. 2006). FINDINGS OF FACT 1. The Veteran did not incur hypertension during a period of active service, within the first post-service year beginning March 1986 and hypertension is not otherwise attributable to service. 2. The Veteran did not incur a myocardial infarction, or residuals thereof, during active service and a myocardial infarction and any residuals thereof are not otherwise attributable to service. CONCLUSIONS OF LAW 1. Service connection for residuals of myocardial infarction is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310 (2011). 2. Service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1110, 1111, 1112, 1131, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in March 2006. It is noted by the Board that the Veteran has suggested that a myocardial infarction and its residuals are secondary to his claimed hypertension; however, as this claim is denied herein below, any absence of notice in this regard is harmless. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). VA has obtained the Veteran's service treatment and personnel records, VA records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology of his claimed disabilities, and afforded the Veteran the opportunity to give testimony before the Board. No further medical examinations are necessary to decide the claims, particularly with respect to the question of aggravation of hypertension, as there is adequate evidence to decide the claim and there is no credible indication that hypertension was aggravated during active service, particularly during any period of INACUDTRA. 38 C.F.R. § 3.159(c)(4; McLendon v. Nicholson, 20 Vet. App. 79 (2006). All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2011). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2011). A finding of secondary service connection requires competent medical evidence to connect the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service-connected. The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). The covered diseases enumerated in the regulation are related to heart attacks and strokes, not high blood pressure. See Dorland's 948 (defining "acute myocardial infarction" as when "circulation to a region of the heart is obstructed and necrosis is occurring"); 134 (defining "cardiac arrest" as sudden cessation of the pumping function of the heart); and 11 (defining "cerebrovascular accident" as "stroke syndrome"). Accordingly, the Veteran's hypertension is not considered a "covered disease" for purposes of establishing service connection during a period of INACDUTRA. Service connection may also be granted for hypertension if manifested to a compensable degree within one year of separation from service provided the rebuttable presumption provisions of § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Evidence which may be considered in rebuttal of service incurrence of a disease listed in 38 C.F.R. § 3.309 will be any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease. 38 C.F.R. § 3.309(d). Service connection on a presumptive basis is not available where the service performed is ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. at 476-78 (1991). The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Code 7101 (2011). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis The Veteran seeks service connection for hypertension and residuals of a myocardial infarction. He asserts that he developed hypertension during a period of active duty in the Army National Guard and that his myocardial infarction and its residuals were either incurred during active duty service or are attributable to his hypertension, yet to be service-connected. The Veteran served on active duty in the Army from March 1984 to March 1986. Thereafter, he enlisted in the Nevada Army National Guard in July 2002. In February 2003 he transferred to the Texas Army National Guard. In July 2004 he was discharged from the Army National Guard and as a member of the Army Reserve. A review of the Veteran's service treatment records related to his first period of service from March 1984 to March 1986 reveals no diagnosis of hypertension or any cardiovascular disease. One blood pressure reading from these records measured 126/90. See March 1985 service treatment record. On another occasion his blood pressure measured 118/102. See January 1986 treatment record. However, the remaining blood pressure readings document diastolic blood pressures predominately ranging in the 70s. A review of the Veteran's National Guard records discloses an entrance examination dated in May 2002. The Veteran's blood pressure measured 142/98 at this time and examination of the cardiovascular system was normal. Subsequent Nevada and Texas Army National Guard medical records document that the Veteran had hypertension and high cholesterol. None of them document any line of duty findings regarding any cardiovascular conditions, including hypertension and a myocardial infarction. A review of the claims file does not disclose any records documenting blood pressure readings within the first post-service year, i.e. by March 1987. The Veteran has rather explained that he was first assessed as having hypertension in October 2003 by a private physician and not during any period of ACUDTRA or INACDUTRA. He also asserts that he was first assessed as having high cholesterol (hypercholesterolemia) at this time. He had a myocardial infarction in January 2005 and claims that this condition and its residuals are attributable to both hypertension and hypercholesterolemia. A review of the medical records related to the Veteran's National Guard service discloses that the Veteran first reported a history of hypertension and high cholesterol in June 2004 during examination. None of these records contain any cardiac complaints, including chest pain, dizziness, etc. Notably, ECG reports dated in May 2002 and June 2004 are of record and no impression of any heart disease was assessed in relation thereto. Contained within the service treatment records is a June 2004 referral record relating to a complaint of an inguinal hernia. The note associated with this documents that the Veteran had been assessed as having hypertension and high cholesterol, but does not document any complaints of chest pain, shortness of breath, etc., or pertain to any cardiac disorder. In furtherance of substantiating his claim, the Veteran submitted a January 2006 opinion from Craig N. Bash, M.D. The opinion notes that the Veteran's medical records were reviewed for the purpose of rendering a medical opinion concerning the Veteran's "cardiac dysfunction" as it related to his "service time." Dr. Bash concluded that the residuals of the Veteran's "cardiac disease/MI" "should be" service-connected. In terms of rationale, Dr. Bash noted that the Veteran had developed hypertension and high cholesterol in October 2003, both of which are known to cause cardiac disease. In closing, Dr. Bash thus concluded that it was clear that the Veteran acquired hypertension and high cholesterol in service, that the Veteran had no other risk factors for his "heart dysfunction" and therefore the Veteran's residuals of "cardiac disease/MI" should be service-connected. In October 2008 the Veteran testified before the Board, along with Craig N. Bash, M.D. In regards to hypertension, the Veteran noted that during "a weekend duty" he informed his superior that he had been previously assessed as having high blood pressure, high cholesterol and that he had a lot of dizziness and chest pain. Dr. Bash advised that he would be submitting another opinion. Shortly thereafter, the Veteran submitted an October 2008 opinion from Dr. Bash pertaining to the etiology of hypertension and the Veteran's "cardiac problems." In his opinion, Dr. Bash noted that his review disclosed a blood pressure reading of 142/98 in service in 2002, apparently in reference to the entrance examination noted above. Dr. Bash related that the Veteran likely had the "early signs and symptoms of his MI in service because chest pain and high blood pressure are early signs and symptoms associated" therewith. He noted further that some patients with chest pain "might" have unstable angina (UA), but without other testing during active duty a patent with UA and those with non-ST-elevation MI cannot be distinguished from one another on the basis of clinical symptoms, ECG findings or angiographic findings. He rendered an opinion that the Veteran's "current cardiac problems" were as likely as not due to "his MI in service" as he entered service fit for duty, and "likely had an MI in service as per the medical facts and text book references" as the Veteran had chest pain and an elevated blood pressure. He noted further that there was no more plausible etiology. In June 2009 the Veteran was afforded a VA examination. The examiner noted that a June 2004 service treatment record, related to an inguinal hernia, disclosed that the Veteran had been assessed as having hypertension and high cholesterol since his last periodic examination. In this regard, the examiner thus concluded that the Veteran's residuals of cardiac disease were not caused by or a result of military service as it was evident that "he already had the condition of hypertension and hypercholesterolemia," which are risk factors for developing heart disease. In furtherance of substantiating his claim, the Veteran was afforded a VA examination in April 2011, to address the date of onset of hypertension. In this regard, the examination report discloses that the first assessment of hypertension was made by a private doctor while the Veteran was enlisted in the Texas Army National Guard, i.e. October 2003. Following the Board's last remand, the Nevada Army National Guard and Texas National Guard provided documentation regarding the Veteran's National Guard service in terms of ACDUTRA and INACDUTRA. Both entities responded and indicated that the Veteran did not serve any ACDUTRA, but rather only INACDUTRA. The Court has held that the findings by the service department verifying a person's service are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also Venturella v. Gober, 10 Vet. App. 340 (1997). Initially, the Board notes that hypercholesterolemia is not a condition subject to service connection. Hypercholesterolemia is a laboratory finding, which is not a disability in and of itself subject to service connection. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). However, hypertension is a recognized disability. See 38 C.F.R. § 4.104, Diagnostic Code 7101. In any event, resolution of this claim depends on when hypertension and hypercholesterolemia first manifested, particularly during a period of active duty or ACDUTRA. The provisions pertaining to INACDUTRA are inapplicable, as they pertain only to injury, except to the extent that they apply to an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. See 38 C.F.R. § 3.6(a). The Board will first address the Veteran's first period of active duty from March 1984 to March 1986. In this regard, service connection is not established. The Veteran does not contend and the clinical and lay evidence clearly shows that he did not incur hypertension or have a myocardial infarction during this period of service. Moreover, the available evidence does not establish that hypertension manifested within the first post-service year relative to this period of service. Indeed, there appear no blood pressure readings dated within this year, thus making such an assessment impossible. Moreover, the Veteran has clearly indicated that he was assessed as having hypertension in October 2003, almost 2 decades after his discharge from this period of service. 38 C.F.R. §§ 3.307 3.309. In regards to the Veteran's National Guard service, service connection for hypertension is likewise not established, either on a direct or presumptive basis. As noted above, the presumptive provisions are inapplicable as the Veteran served only on INACDUTRA during this period. Biggins, supra. Likewise, as the Veteran only served on INACDUTRA during this time, service connection is not available for hypertension, a disease, on a direct basis. Along these lines, there is no suggestion or competent assertion that hypertension was aggravated to any extent during a period of INACDUTRA. The service treatment records document treatment for hypertension, but disclose no aggravation or increase in severity thereof. Neither Dr. Bash nor the Veteran makes any assertion of aggravation. Accordingly, entitlement to service connection for hypertension must be denied. In regards to the myocardial infarction, there is no indication that the Veteran suffered one during his first period of service and the Veteran does not contend so. Moreover, as service connection for hypertension is denied, secondary service connection for a myocardial infarction and its residuals cannot be entertained or established. 38 C.F.R. § 3.310. In sum, the Veteran did not incur a myocardial infarction during his first period of active service. Gilbert, supra. The Veteran asserts that he incurred a myocardial infarction during his National Guard service. Dr. Bash asserts that the Veteran's myocardial infarction occurred during a period of INACDUTRA. As noted above, service connection for a myocardial infarction is available during such a period. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Resolution of this claim depends largely on the weight to be assigned to Dr. Bash's opinion, which purports to assert that the Veteran had an acute myocardial infarction during a period of INACDUTRA. In this regard, it is noted by the Board that in contradiction to the history offered by Dr. Bash, there appear no documented complaints of shortness of breath, chest pain, etc. In fact, in completing a medical history report in June 2004, the Veteran specifically denied having experienced such complaints. The Board is mindful of the decision in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred in finding that a Veteran's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case, however, is distinguishable from Buchanan in that the Board is not relying solely on the fact that there are no documented complaints during the period at issue. Rather, this is a case in which the Veteran specifically denied a history of symptoms at the same time that Dr. Bash now asserts that such symptoms were present. The Board finds such a contemporaneous denial particularly credible given that the Veteran had a recognized history of hypertension and high cholesterol at that time, which strongly suggests that any inquiries regarding symptoms such as chest pain or other potential cardiovascular manifestations would be of particular note to the Veteran. As noted, Dr. Bash appears to attempt to attribute the MI to service largely based upon these undocumented complaints. Dr. Bash's opinion thus appears unsupported and contradicted by the record and history. However, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Thus, Dr. Bash's opinion is afforded little, if any, weight. The Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Board does not find that the Veteran incurred an acute myocardial infarction and its residuals during a period of INACDUTRA. A review of the evidence shows that the Veteran incurred a myocardial infarction in January 2005, almost 2 years following his discharge from the National Guard. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). The service treatment records pertaining to this period of service document no cardiac complaints, or any complaints regarding shortness of breath, etc., in contradiction to the Veteran's reports. Moreover, as noted above, there appear two ECG reports dated within this period and neither documents any cardiac problems. No acute myocardial infarction was assessed during any period of INACDUTRA and, as noted above, the Board finds it implausible that the Veteran would not receive treatment for a MI in service, or for over 2 years after the occurrence thereof. Accordingly, regardless of the historical notations of hypertension and hypercholesterolemia during INACDUTRA and Dr. Bash's opinion, service connection for a myocardial infarction and its residuals is not established. Gilbert, supra. ORDER Entitlement to service connection for residuals of myocardial infarction is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs