Citation Nr: 1301501 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-42 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a cardiovascular disability to include coronary artery disease. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from July 1945 to Marv 1947. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office. In an October 2010 substantive appeal, the Veteran requested a hearing before the Board sitting at the RO. In September 2011, the Veteran agreed to a hearing by videoconference. In correspondence in November 2011, the Veteran's representative noted that the Veteran experienced a heart attack, could not travel, and desired the Board adjudicate the claim on the basis of the evidence of record. Generally, a request for a hearing may not be withdrawn by the representative without the Veteran's concurrence. 38 C.F.R. § 20.704 (2012). In this case, the representative repeated information obtained from the Veteran regarding an illness and an inability to travel to a hearing. Moreover, in an October 2012 response to a supplemental statement of the case, the Veteran submitted an additional personal statement with a waiver of consideration by the RO but did not mention an expectation of a hearing. Therefore, the Board considers the request for a hearing withdrawn. In April 2012, the Board granted a petition to reopen a claim for service connection for a heart disorder and remanded the appeal for further development. In November 2012, the RO granted service connection for a gastrointestinal disability best diagnosed as peptic ulcer disease. Therefore, that claim is no longer on appeal before the Board. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that were considered. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's current arteriosclerotic coronary artery disease first manifested greater than one year after service and was not caused or aggravated by any aspect of service including a contended high fever and diagnosed measles infection. CONCLUSION OF LAW The criteria for service connection for a cardiovascular disability to include coronary artery disease are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The notice requirements apply to all five elements of a service connection claim. The five elements are: 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In November 2009, the RO provided a timely notice that met the requirements. The notice advised the Veteran of all criteria to substantiate a service connection claim and VA's and the Veteran's respective responsibilities to obtain relevant evidence. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has also obtained medical examinations. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The Veteran served as a U.S. Army infantryman with an assignment to occupation forces in the Mediterranean Theater of Operations. He contends that his arteriosclerotic cardiovascular disease was caused by a viral infection in service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In general, 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). A disease must be shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge from service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Disorders diagnosed after discharge may still be service-connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic diseases, such as cardiovascular disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In statements in November 2009 and November 2012, the Veteran reported that he arrived at a military hospital in April 1946 with a fever of 106.5 degrees. He reported that his attending physician did not tell him about a diagnosis of measles but rather that he had heart damage from the high fever. He further reported that at the time of his discharge physical examination, the military examiner and another heart specialist told him that he had a heart problem and advised hospitalization. The Veteran reported that he declined further military treatment because he wanted to go home. Service personnel records showed that the Veteran served in Southern Europe from January 1946 to a 1947 with no combat service. The only service treatment records that could be recovered were his unit's daily sick reports and a January 1947 report of a discharge physical examination. Unit records showed that the Veteran became ill in early March 1946. He was admitted to a military hospital in early April 1946, received treatment for measles for three weeks, and was returned to full duty. He was later treated as an outpatient in August and October 1946 for unspecified symptoms and was returned to duty the same day. In the January 1947 physical examination, the Veteran reported that the measles infection was his only significant disease or injury. A chest X-ray was normal. A military physician noted no cardiovascular abnormalities and normal blood pressure. The physician noted that in his opinion the measles infection would not result in a disability. In August 1975, the Veteran submitted a claim for service connection for a heart disorder as a residual of the measles infection. In November 1975, the RO denied the claim because the service record evidence did not show symptoms or diagnoses for any cardiovascular disorder. In June 1985, the Veteran petitioned to reopen the claim and noted that he received treatment from several private physicians. The RO recovered records of letter reports and examination summaries from three private physicians dated in 1982 and 1985. The physicians noted that the Veteran worked after service as an accountant and insurance salesman. The physicians referred to earlier records of the onset of cardiac symptoms in the 1970s including possible heart attacks and cardiac catheterizations. One physician noted that the Veteran experienced a heart attack at some time between 1973 and 1975 and that he stopped working in 1974. A physician noted that the Veteran had a strong family history of coronary artery disease in several brothers and sisters. None of the physicians noted an awareness of the measles infection in service or associated the cardiovascular disease with any aspect of service. Records of VA primary outpatient care from June 2006 to March 2012 have been associated with the claims file or the Virtual VA electronic file. The attending physicians noted on-going cardiovascular care by a private physician with monitoring, medication, and some diagnostic testing at VA facilities. Holter monitor testing in August 2009 showed some ectopic atrial rhythm and an echocardiogram in October 2009 showed grade I diastolic dysfunction but good left and right ventricular function. The clinicians listed an on-going diagnosis of coronary artery disease. Although advised by the RO to identify the providers of private care, the Veteran did not authorize VA to obtain records from the private physician noted by the VA examiners. None of the outpatient clinicians noted awareness or commented on the measles infection in service. In February 2010, the RO declined to reopen the claim for service connection for a cardiovascular disorder because the evidence of record did not show a relationship to service. In a September 2010 statement of the case, the RO reopened the claim but denied it on the merits for the same reason. In April 2012, the Board reviewed the appeal and reopened the claim for service connection for a cardiovascular disorder because there was new evidence of a current disorder and because the criteria for VA to provide a medical examination and opinion had been met. The Board remanded the appeal to obtain current VA treatment records, to again advise the Veteran to identify private care providers, and to obtain a VA examination and opinion on the origin of the disease. In correspondence in April 2012, the Appeals Management Center (AMC) advised the Veteran to identify any private medical care providers for his cardiovascular disease and to authorize the AMC to obtain relevant records. In May 2012, the Veteran submitted records of a private cardiac catheterization in December 2011 and an echocardiogram in May 2012. The testing showed mild aortic stenosis, reduced left ventricular function, some valve regurgitation, and a positive stress test for coronary artery disease. Records of hospitalization for unrelated disorders also showed episodes of heart arrhythmias during the course of the treatment. As noted above, the RO obtained VA outpatient treatment records through March 2012. None of the private or VA attending physicians noted the measles infection in service or commented on the origin of the coronary artery disease. In May 2012, a VA contract physician noted a review of the claims file and the Veteran's reports of a high fever and treatment for measles in 1946. He noted the Veteran's report that military physicians told him that his heart had been affected by the illness. The Veteran further reported that after service he always experienced dyspnea with physical labor. He reported his first myocardial infarction in 1975 and five additional infarctions in later years. The physician performed an examination and also noted the valve dysfunction and arterial stenosis. The physician concluded that the current cardiac disorder was less likely than not related to the incident in service. Regarding the Veteran's report of the high fever, the physician commented, "...it is conceivable that the diagnosis may have been scarlet fever related to a streptococcal infection, in which case a valvular disorder could follow as a sequale." He further explained, "I believe the valvular abnormalities are most likely (greater than 50%) related to his age rather than a sequale of scarlet fever." Finally, the physician noted, "The veteran's heart condition, first manifested as a myocardial infarction in 1976, is secondary to arteriosclerotic coronary artery disease, which is not a recognized sequale of either measles or scarlet fever." The Board concludes that the examination was adequate as the examiner reviewed the entire history, evaluated the Veteran's current symptoms, provided a comprehensive diagnosis, and responded to the Board's questions with an explanation based on the history, medical evidence, and his medical training. As the AMC obtained additional VA and private records and as an adequate VA examination was performed, the Board concludes that there has been substantial compliance with the remand instructions. The Board concludes that service connection for a cardiovascular disability to include coronary artery disease is not warranted. Although there is ample credible medical evidence of a current disability, the great weight of credible evidence is that the disability manifested many years after service and was not caused or aggravated by any aspect of service including the measles infection in 1946. The Veteran is competent to report on experiencing a high fever at the start and during his three week hospitalization and on the information that he was told by the attending physician and later by two other military physicians at the time of his discharge examination. The report of a high fever is credible as it is consistent with the diagnosis of a viral infection and with a three week period of inpatient treatment. His report of dyspnea on exertion after service is credible but there are multiple reasons for shortness of breath on exertion and no evidence of any treatment prior to the earlier 1970s. The Board places very low probative weight on the Veteran's report that he was told he had heart damage because it is inconsistent with the service records that showed that he continued full duty in an overseas location. Moreover, the Veteran did not list possible heart damage in his discharge medical history, and the examiner noted that the measles infection would not result in a disability. It would be reasonable that the physician would note the possible heart damage if he and a specialist had so advised the Veteran even if the Veteran declined any further treatment. The probative weight of the Veteran's report is also diminished because none of his treating physicians in the 1980s or since 2006 made any mention of the measles infection or any aspect of service as would be expected if it were the cause of his heart disorder. The Board acknowledges the Veteran's sincerely held belief that his heart was damaged by a high fever experienced during the measles infection. However, as a layperson, the Veteran does not possess the necessary knowledge of medical principles, and his assertions, standing alone, are not probative as to the etiology of his current cardiovascular symptoms. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board places greatest probative weight on the examination, analysis, and opinion of the VA contract physician in 2012 who reviewed the entire file of in-service and post-service symptoms, diagnoses, and treatment. He considered but rejected the hypothesis of an episode of scarlet fever, which is consistent with the service records that would very likely have included that diagnosis had it been warranted at the time. Moreover, none of the private or VA clinicians speculated on an episode of scarlet fever as a cause for the Veteran's hospitalization in service or his current disease. Rather, the VA physician concluded that the heart valve dysfunction and arteriosclerotic disease was caused by age and were not residuals of measles. There is no other competent medical opinion of record. The weight of the credible and probative evidence demonstrates that the Veteran's current arteriosclerotic coronary artery disease first manifested greater than one year after service and is not related to his active service including a high fever and measles infection. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a cardiovascular disability to include coronary artery disease is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs