Citation Nr: 1234960 Decision Date: 10/09/12 Archive Date: 10/17/12 DOCKET NO. 07-27 831A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for coronary artery disease. 2. Entitlement to service connection for diabetes mellitus (DM). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and son ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran had active service from March 1953 to February 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida. A Travel Board hearing was held by a Veterans Law Judge in January 2009, in St. Petersburg, Florida. A transcript of the hearing is of record. In February 2009, the Board issued a decision that, in pertinent part, denied the benefits currently sought on appeal. The Veteran timely appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In November 2010, the Court issued a memorandum decision that partially set aside the Board's February 2009 decision and remanded the case to the Board for additional evidentiary development. In June 2011, the Board remanded this matter to the RO to comply with the Court's memorandum. This matter was once again remanded by the Board in December 2011 for further development, in light of the requirements of the Court's decision. In a May 2012 letter, the Board informed the Veteran that the Veterans Law Judge who performed the January 2009 Board hearing had retired. The Veteran was notified of his ability to have another hearing if he so desired. In May 2012, the Veteran indicated that he did not wish to appear at another hearing and that he wanted his case considered on the record. The undersigned has reviewed the transcript, in detail. In July 2012, the matter was once again remanded by the Board to clarify the opinion rendered by the VA examiner in January 2012. The Board apologizes for the delay in the adjudication of this case. The requested development has been completed and the matter is now ready for appellate review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Any current diabetes mellitus is not of service origin. 2. Any current coronary artery disease, status post bypass graft, including as secondary to DM, is not of service origin. CONCLUSIONS OF LAW 1. Diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). 2. Coronary artery disease was not incurred in or aggravated by active service, nor may it be presumed to have been incurred or aggravated therein, nor is it proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2006 & 2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson, supra; see Grover v. West, 12 Vet. App. 109, 112 (1999). The Board may not reject the credibility of the veteran's lay testimony simply because it is not corroborated by contemporaneous medical records. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may 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). Chronic diseases, such as DM and cardiovascular disease, will be presumed to have been incurred in service if it had become manifest to a degree of ten percent or more within one year of the Veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). 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. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). A portion of the service treatment records appear to be unavailable through no fault of the Veteran. Hence, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). However, case law does not establish a heightened "benefit of the doubt," only a heightened duty of the Board to consider the applicability of the benefit of the doubt, to assist the claimant in developing a claim, and to explain its decision when the Veteran's medical records have been lost. Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Similarly, case law does not 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 the evidence that may be favorable to the veteran. Russo v. Brown, 9 Vet. App. 46, 50-51 (1996). DM The Veteran's separation examination contains no diagnosis of DM. His report of separation examination documents a normal endocrine system at discharge. The report of separation examination also documents a history of fever of unknown origin in November 1953 for 2 days, January 1954 for 7 days and February 1954 for 2 days. The Veteran is currently diagnosed as having diabetes mellitus, with an apparent onset of approximately 1980. A July 2008 private treatment note documents a history of diabetes for approximately 28 years. The Veteran's VA medical records show treatment and diagnosis of DM. At his Travel Board hearing the Veteran testified as to having been diagnosed with DM in 1980. He also testified that during service he suffered from Hemorrhagic fever and was treated with penicillin, which he thought must have caused his diabetes. In a March 2011 letter, the Veteran's private physician, P. S., M.D., indicated that the Veteran was a Veteran of the Korean War. He indicated that on multiple occasions Hemorrhagic fever was diagnosed and the Veteran was subsequently treated. He stated that the factual history during his service in the Korean War showed that DM was most likely related to an exposure to the Hunta virus. Moreover, complications secondary to exposure included, but were not limited to, hypertension, chronic kidney disease, coronary artery disease, cerebral vascular accident, retinopathy, neuropathy, nephropathy, peripheral vascular disease, fatigue, and weakness. In June 2011, the Board remanded this matter for further development, to include scheduling the Veteran for a VA examination to determine the nature and etiology of any current DM. The Veteran was scheduled for the examination but did not report. It was noted that his health prevented him from traveling to Tampa for the examination. In its December 2011 remand, the Board noted that the Veteran should be scheduled for an appropriate examination to determine the nature and etiology of his DM. The requested medical opinion was to be provided even if the Veteran was unable to attend the examination. After reviewing the claims file and examining the Veteran (if available), the examiner was to offer an opinion as to whether it was at least as likely as not (a 50% or higher degree of probability) that any current DM was related to service. In rendering this opinion, the examiner was to specifically consider and discuss the March 30, 2011 opinion letter submitted by P. S., M.D. In a January 2012 examination report, the examiner indicated that the claims folder, private medical records, and CPRS records had been reviewed. The examiner stated that it was less likely as not that the Veteran's DM was caused by or a result of military service. The examiner noted that there was no evidence of DM in the service treatment records or immediately after service and that the Veteran was first diagnosed with DM in 1980 per private medical records review. In its July 2012 remand, the Board noted that while the examiner provided an opinion, he did not address the March 2011 opinion set forth by Dr. S. as was required. In a July 2012 addendum report, the VA examiner indicated that after reviewing the claims file and notes from private physicians, specifically the March 2011 letter from Dr. S, the previous opinion still stood. He stated that there was no evidence of DM in the service medical records. He further observed that medical literature did not show a relationship between Hemorrhagic fever and DM. As to service connection for a DM on a direct or presumptive basis, the Board notes that when considering in-service incurrence, the available service treatment records fail to demonstrate any complaints or treatment referable to treatment for DM. There is also no evidence of findings or treatment for any DM in close proximity to service. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. The Veteran has not indicated that his DM had its onset in service or in close proximity to service. Furthermore, the Veteran did not raise a claim of service connection for this disorder until many years following service. If he had been experiencing continuous symptoms, it is reasonable to expect that he would have filed a claim much sooner. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. As it relates to the statements from the Veteran asserting a nexus between any current DM and treatment for Hemorrhagic fever in service, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board notes that the Veteran has submitted a March 2011 statement from his private physician indicating that on multiple occasions Hemorrhagic fever was diagnosed and the Veteran was subsequently treated. He further reported that the factual history during his service in the Korean War showed that DM was most likely related to an exposure to the Hunta virus. While the Board notes that the Veteran was treated on three separate occasions for fever of unknown origin while in service, there is no indication that it was hemorrhagic fever. Moreover, there is no notation of Hunta virus on the separation examination or in treatment records in close proximity to service. These facts limit the probative value of the assumptions made in this opinion. Also of record is the January 2012 VA examiner's report, wherein he stated that it was less likely as not that the Veteran's DM was caused by or a result of military service, and his July 2012 follow-up report, wherein he noted that there was no evidence of DM in the service medical records and that medical literature did not show a relationship between Hemorrhagic fever and DM. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In this regard, the Board finds that the opinion of the VA examiner is more probative. The VA examiner reviewed the Veteran's entire claims file and made reference to the medical records, specifically the March 2011 report from Dr. S., when rendering his opinion. The examiner's opinion was supported by detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds his opinion to be the more probative evidence of record. In sum, the preponderance of the evidence weighs against a finding that any DM developed in service or was due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Coronary Artery Disease The Veteran's separation examination report contains no diagnosis of coronary artery disease. Separation examination resulted in an impression of a normal heart (thrust, size, rhythm and sounds) and a normal vascular system. At his Travel Board hearing, the Veteran testified to first having a heart attack in 1980. He related that he had been informed that his DM had affected his heart. He stated that he had been told this during treatment at Hempstead General Hospital, but that any records related to this treatment were unavailable as the hospital had closed. The Veteran submitted medical records from St. Francis Hospital dated in 1987, which show diagnosis of coronary artery disease. These records also show that the Veteran underwent open heart surgery in May 1987 related thereto. Subsequent private and VA medical records document further diagnosis and treatment of this condition. In his March 2011 letter, Dr. S. indicated that the Veteran had multiple diagnoses of Hemorrhagic fever in service and that the Veteran was exposed to the Hunta virus, with coronary artery disease resulting as a complication to the exposure. In connection with the Board's remands in 2011 and 2012, the January 2012 VA examiner indicated that it was less likely than not that the Veteran's coronary artery disease was caused by or resulted from his military service, as there was no evidence of heart disease noted in the Veteran's service treatment records, with the first diagnosis not until 1980. In his July 2012 addendum report, the VA examiner noted that after reviewing the claims folder and private treatment records, especially the March 2011 letter from Dr. S., his previous opinion stood. The VA examiner indicated that there was no evidence of heart disease in the service treatment records and that medical literature did not show a relationship between Hemorrhagic fever and heart disease. It was also noted that the Veteran had significant family risk factors. Both parents had heart disease and the Veteran had been a heavy smoker prior to stopping 30 years earlier. It was indicated that genetics, smoking, and hyperlipidemia, which the Veteran had, could cause significant heart disease. As to service connection for coronary artery disease on a direct or presumptive basis, the Board notes that when considering in-service incurrence, the available service treatment records fail to demonstrate any complaints or treatment records referring to treatment for heart disease. There is also no evidence of findings or treatment for any heart disease in close proximity to service. Therefore, the clinical evidence does not reflect continuity of symptomatology. The Board, however, must also consider the lay evidence of record in determining whether there is continuity of symptoms. The Veteran has not indicated that his heart disease had its onset in service or in close proximity to service. Furthermore, the Veteran did not raise a claim of service connection for this disorder until many years following service. If he had been experiencing continuous symptoms, it is reasonable to expect that he would have filed a claim much sooner. See Maxson v. Gober, 230 F.3d 1330, 1333; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). For the above reasons, continuity has not here been established, either through the clinical record or through the Veteran's own statements. As it relates to the statements from the Veteran asserting a nexus between any current coronary artery disease and treatment for Hemorrhagic fever in service, the Board acknowledges the holding of the U.S. Court of Appeals for the Federal Circuit in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship and, as such, the Veteran is not competent to address etiology in the present case. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. The Board notes that the Veteran has submitted a March 2011 statement from his private physician indicating that on multiple occasions Hemorrhagic fever was diagnosed and the Veteran was subsequently treated. He further reported that coronary artery disease was a complication of exposure to the Hunta virus. While the Board notes that the Veteran was treated on three separate occasions for fever of unknown origin while in service, there is no indication that it was Hemorrhagic fever. Moreover, there is no notation of Hunta virus on the separation examination or in treatment records in close proximity to service. Also of record is the January 2012 VA examiner's report, wherein he stated that it was less likely as not that the Veteran's coronary artery disease was caused by or a result of military service, and his July 2012 follow-up report, wherein he noted that there was no evidence of coronary artery disease in the service medical records and that medical literature did not show a relationship between Hemorrhagic fever and coronary artery disease. The examiner also noted a number of other factors which could have contributed to the development of the Veteran's coronary artery disease, none of which were related to his period of service. In this regard, the Board finds that the opinion of the VA examiner is more probative. The VA examiner reviewed the Veteran's entire claims file and made reference to the medical records, specifically the March 2011 report from Dr. S., when rendering his opinion. The examiner's opinion was supported by detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds his opinion to be the more probative evidence of record. As to the Veteran's claim that his coronary artery disease developed secondary to his DM, as service connection is not in effect for DM, the issue of secondary service connection is moot. In sum, the preponderance of the evidence weighs against a finding that any claimed coronary artery disease developed in service, is due to any event or injury in service, or was caused or aggravated by any service-connected disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Duty To Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran's status has been substantiated. In an April 2007 letter, the RO provided the appellant with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter also told him to submit relevant evidence in his possession. The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with notice as to the disability rating and effective date elements of the claim in the April 2007 letter. VA has also complied with its duty to assist the Veteran in substantiating the claim. It appears that all pertinent post service treatment records have been requested and that all available records have been obtained insofar as possible. The Board also reviewed "Virtual VA" for any other pertinent records. The Board notes that a portion of the Veteran's service treatment records appear to be not available through no fault of the Veteran. The Veteran's service separation examination is available for review. The Board notes that in November 2006, the RO informed the Veteran of the unavailability of certain medical records and allowed the Veteran the opportunity to submit a NA Form 13055 in support of his claim. The Veteran submitted the form but did indicate that he was treated for any disability at a hospital. In a December 2006 letter, the RO informed the Veteran that efforts to obtain treatment records were futile. In January 2007, a memorandum was prepared indicating what steps had been taken to obtain records and that all efforts to obtain further records had been futile. The Veteran's representative has indicated that no attempts have been made to obtain surgeon general office extracts. In this regard, the Board notes that even if the extracts were available and showed treatment for a Hunta virus, which has not been shown, as the Board is placing greater emphasis on the opinion of the VA examiner, who after reviewing the entire record, including the March 2011 letter from Dr. S. which addressed the issue of a Hunta virus, indicated that it would be less likely than not that the Veteran's DM and coronary artery disease were related to his period of service, they would not provide the necessary element of a nexus between the current disorders and service. In conjunction with his claim, the Veteran was afforded several VA examinations, with the most recent VA examiner rendering opinions with regard to the etiology of the DM and coronary artery disease and their relationship, if any, to his period of service. While the Board notes that the Veteran's representative has indicated that the VA examiner did not address the Veteran's Hunta virus exposure, the examiner indicated that he had reviewed the entire claims folder, specifically citing to the March 2011 statement from Dr. S. when rendering his opinion. The Board finds that the directives of the Board remand have been substantially complied with and that information obtained from these examinations is sufficient in order to properly address this issue. The Board further notes that the requirements of the prior remand have been complied with. An additional remand of this case will not provide a basis to grant this claim. The appellant has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative, and through testimony at a January 2009 Travel Board hearing. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the appellant have been met, and no further action is necessary to assist the appellant in substantiating this claim. ORDER Service connection for DM is denied. Service connection for coronary artery disease is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs