Citation Nr: 1237342 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 05-36 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for migraine headaches. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from April 1975 to October 1979. She also served in the reserves with a period of active duty for training (ACDUTRA) from July 5, 1987 to September 2, 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 decision of the St. Petersburg, Florida Department of Veterans Affairs (VA) Regional Office (RO). In May 2007, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Board remanded these issues for further evidentiary development in August 2007 and September 2010. The requested development was completed, and the case has now been returned to the Board for further appellate action. The issues of entitlement to service connection for hypertension and migraine headaches are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran does not currently suffer from a heart disorder. CONCLUSION OF LAW The criteria for establishing service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence she is responsible for providing. 38 C.F.R. § 3.159(b) (2011). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. Collectively, in October 2003, June 2005, October 2007, and September 2010 letters, the Veteran was provided notice regarding what information and evidence is needed to substantiate her claim for entitlement to service connection, to include on a secondary basis, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The October 2007 and September 2010 letters, as well as a March 2006 letter, advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The claim was last readjudicated in December 2011. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records and service personnel records, VA treatment records and examination reports, private treatment records, Social Security Administration (SSA) records, and hearing testimony. In addition, the Board notes that the case was remanded in August 2007 to obtain SSA records and provide the Veteran with an examination, and in September 2010 to provide the Veteran with additional VCAA notification, to obtain certain VA and private treatment records, and to obtain a VA addendum opinion. As noted above, VCAA notification was provided. In addition, the requested SSA and VA records were obtained. A VA examination was provided in December 2008 and an addendum opinion was obtained in October 2010. Authorization to obtain the private records identified by the Board in September 2010 was requested from the Veteran in September 2010. The request was sent to the Veteran's last known address and was not returned by the post office as undeliverable. There is nothing to suggest that the Veteran did not receive the request for additional authorization. The Veteran did not respond to the request for additional authorization. Without authorization, VA cannot obtain private treatment records. As such, VA has satisfied the duty to assist regarding these records. Accordingly, the requirements of the remands were ultimately accomplished and the prior remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran underwent a VA examination in December 2008 and an addendum opinion was obtained in October 2010. The examination is found to be adequate in so far as it thoroughly and accurately portrays the Veteran's complaints. The opinion is also adequate as it was offered after a review of the claims file and with a history obtained from the Veteran. Diagnostic testing, including a chest X-ray, echocardiogram (ECHO) and electrocardiogram (ECG) were reviewed, and a rationale was provided for the conclusions. Therefore the Board finds that the Veteran has been provided an adequate medical examination and an adequate medical opinion has been obtained in conjunction with her claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that a medical opinion is adequate when it is based upon consideration of a claimant's prior medical history and examinations and describes the disability in sufficient detail so that the evaluation of the claimed disability will be a fully informed one). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for a VA examination. Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2011); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may additionally be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA or injury incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106 (West 2002). As provided by 38 U.S.C.A. § 1154(a) (West 2002), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and certain heart disorders, such as endocarditis and myocarditis, become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1131, 1133 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110, 1131. In the absence of proof of present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service treatment records from the Veteran's period of active duty and period of ACDUTRA from July 5, 1987 to September 2, 1987 show no complaint, diagnosis or treatment for a heart disorder. In fact, evaluation of the heart was normal and the Veteran denied having chest pain in September 1974, July 1977, August 1979, and May 1987. The evidence reflects the Veteran's complaints of chest pain beginning around 1999. In March 1999, it was noted that the Veteran had myofascial pain of the right rhomboids possibly causing right-sided chest pain recently. In November 1999, the Veteran was assessed with atypical chest pain and it was noted that the practitioner doubted a history of angina. In May 2000, the Veteran complained of chest pain on the left side. The impression at that time was "Class II-III angina in the setting of on known coronary artery disease." In September 2000, the Veteran had an abnormal exercise myocardial perfusion scan. There appeared to be a moderate amount of inducible ischemia in the inferior and inferolateral wall. It was noted that the perfusion defect may be a real finding given exercise induced symptoms and ECG changes, or it may represent artifact due to diaphragmatic attenuation from a distended stomach. A February 2001 treatment note indicated that the Veteran had a long history of left atypical chest pain but no known documented heart problems. The practitioner reviewed diagnostic testing results and assessed atypical chest pain and palpations. After a February 2002 ECG it was noted that the Veteran had a normal LV systolic function, and that the estimated ejection fraction was 55 to 60 percent. LV wall thickness showed mild concentric left ventricular hypertrophy. LV wall motion was normal. Bubble contrast study was negative with no evidence of intracardiac shunt. There was no obvious source of cardiac emboli identified by the study. The Veteran complained of chest pain after starting a physical therapy routine in July 2004. The diagnosis was musculoskeletal chest pain. Atypical chest pain was noted after an August 2004 exercise stress test. In December 2004, the Veteran again complained of chest pain, which had been present for 2 weeks. The assessment was costochondritis. A dobutamine stress echo was performed in May 2005 and showed no evidence of ischemia. LV resting systolic function was normal, as was LV wall motion. The estimated ejection fraction was 55 to 60 percent. After complaining of chest pain in September 2005, the impression was left shoulder pain versus costalchondritis. During a November 2008 VA cardiology consultation the Veteran's complaints of chest pain were again noted. Coronary artery disease had been ruled out by dobutamine stress echo and cardiac computed tomography. The impression was that the Veteran had atypical chest pain. It was noted that the etiology of the pain may be due to other psychological etiologies, but it was extremely unlikely that it was cardiac in nature. The nurse practitioner and co-signing physician explained that the stress test, computed tomography of the coronary arteries, and prior cardiac catheterizations were all negative for coronary artery disease. The possibility of gastroesophageal reflux disease and musculoskeletal etiologies of the chest pain were discussed. The Veteran was seen by VA gastroenterology in November 2008 to determine if her chest pain was gastrointestinal in nature. The physician's assistant noted normal diagnostic findings and stated that the Veteran's pain did not sound like esophageal spasm. According to the physician's assistant, there was no obvious source of the Veteran's atypical chest pain and it did not appear to be gastrointestinal related. The Veteran was afforded a VA heart examination in December 2008. The physician reviewed the claims file in connection with the examination. The Veteran complained of a long history of atypical chest pain with a negative cardiac work up. An examination was performed and diagnostic testing was reviewed. The diagnosis was normal examination, no coronary artery disease. In an October 2010 addendum opinion, the physician opined that the Veteran's non-cardiac chest pain was less likely as not related to service. She noted that there was no mention of recurrent atypical chest pain in service and that there was no cardiac diagnosis and no history of coronary artery disease. The medical evidence indicates that the Veteran does not have a current heart disorder. While suggestions of ischemia, angina, and coronary artery disease were made prior to the present claim, the medical evidence of record since the filing of the instant claim indicates that the Veteran may have chest pain but she does not have a heart disorder. In 2008, after examination of the Veteran and review of multiple diagnostic tests, a VA nurse practitioner (and co-signing physician) and a VA examiner determined that it was extremely unlikely that the chest pain was cardiac in nature and that the Veteran had no current cardiac diagnosis, respectively. Other explanations for the Veteran's chest pain have also been posited, such as the pain being musculoskeletal or psychological in nature or a result of costochondritis. The Board has considered the lay testimony given by the Veteran. However, complaints of chronic pain, alone, without a diagnosed or identifiable underlying malady or condition, do not constitute a disability for which service connection can be granted. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001); Evans v. West, 12 Vet. App. 22 (1998) (holding that there was no objective evidence of a current disability, where the medical records showed the veteran's complaints of pain, but no underlying pathology was reported). To the extent the Veteran contends that she suffers from a heart disorder, the Veteran is not competent to provide a medical opinion on a matter requiring expertise, such as the diagnosis and etiology of a heart disorder. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds that the medical evidence of record showing no current heart disorder is entitled to greater probative value than the Veteran's lay contention. The physical examination of the Veteran and other objective testing including many diagnostic tests performed by trained medical professionals are more probative as to the actual presence of a claimed heart disorder than the Veteran's contentions. Thus, the Board finds the medical evidence reflecting no current heart disorder to be of greatest probative value in determining the existence of disability. In the absence of competent evidence of a current heart disorder, service connection is not warranted. See Brammer, 3 Vet. App. at 225; see also Degmetich, 104 F.3d 1328. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a heart disorder is denied. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims for entitlement to service connection for hypertension and migraine headaches. See 38 C.F.R. § 19.9 (2011). Service connection is currently in effect for bipolar condition with insomnia. Since this case was most recently returned the Board, the Veteran submitted medical articles printed from the internet that suggest there may be some relationship between migraine headaches and bipolar disorder and between hypertension and bipolar disorder. This is a new theory of entitlement offered by the Veteran and no medical opinion has been obtained addressing it. As such, these issues must be remanded so that an addendum opinion can be obtained. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the examiner who conducted the December 2008 VA heart examination (and offered the October 2010 addendum opinion), if available, to address the following after review of the entire claims file (both the paper file and any electronic portion of the file): (a.) Is it at least as likely as not (50 percent or greater) that the Veteran's migraine headaches or hypertension are causally related to her service-connected bipolar condition with insomnia? (b.) Is it at least as likely as not (50 percent or greater) that the Veteran's migraine headaches or hypertension were aggravated beyond the normal course of the conditions by her service-connected bipolar condition with insomnia? A complete rationale for all opinions expressed should be provided. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion, then such examination should be scheduled. If the previous examiner is no longer available, then the requested opinion should be rendered by another qualified examiner. 2. After the development requested above has been completed to the extent possible, the record should again be reviewed. If any benefit sought on appeal remains denied, then the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ LAURA H. ESKENAZI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs