Citation Nr: 1302587 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 05-09 669 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a cardiovascular disorder. REPRESENTATION Appellant represented by: American Ex-Prisoners of War, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran had active duty from February 1985 to July 1990 and from January 1991 to May 1991. She also had service in the U.S. Army Reserves, to include periods of active duty training (ADT) from September 1980 to January 1981 and from May 1982 to June 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). In September 2006, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. The transcript from that hearing has been associated with the claims file and has been reviewed. The case was then remanded by the Board in November 2007, June 2010and January 2012 for additional development and readjudication. In current status, the case returns to the Board after completion of development made pursuant to its most recent remand in January 2012. FINDING OF FACT A chronic cardiovascular disorder was not present in service and did not manifest to a compensable degree within one year of the Veteran's discharge from service-or, indeed, until many years thereafter. There is no competent and credible evidence relating any current cardiovascular disorder to an established event, injury, or disease during service. CONCLUSION OF LAW A chronic cardiovascular disorder was not incurred in or aggravated by military service and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Before addressing the merits of the service connection issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his or her representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor her representative has alleged prejudice with respect to notice, as is required. Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letters dated in October 2002, January 2003, October 2005, March 2006, and December 2007, of VA's duty to assist her in substantiating her claim, and the effect of this duty upon her claim. These letters also informed her of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. As together these letters addressed all notice elements, nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds that VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. Her in-service and pertinent post-service treatment reports, including those from the Social Security Administration (SSA), are of record. The Veteran has not indicated that any additional pertinent evidence exists, and there is no indication that any such evidence exists. A VA examination was obtained in August 2009 to assist in determining whether the Veteran's claimed condition is attributable to her military service. 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 the VA examination is more than adequate, as it reflects a full review of all medical evidence of record, is supported by sufficient detail, and refers to specific documents and medical history as well as the Veteran's service history to support the conclusions reached. Thus, the report of that examination (which reflects not only the Veteran's history, but her complaints, clinical findings, and diagnosis) is sufficient. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion concerning the issue being decided herein has been met. 38 C.F.R. § 3.159(c)(4) (2012). Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence pertinent to her claim. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis The Veteran seeks service connection for a cardiovascular disorder that she believes had its onset during her active duty service. Although a cardiovascular disease was not diagnosed in service, she asserts that her complaints of chest pain during service were indicative of such a disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. Service connection for certain specified chronic diseases, such as cardiovascular disease, may be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A disorder may also be service connected if the evidence of record reveals that the Veteran currently has a disorder that was chronic in service or, if not chronic, that was "noted" in service with post-service continuity of the same symptomatology and medical or lay evidence of a nexus between the present disability and the symptomatology. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). In other words, a veteran can establish continuity of symptomatology in cases where he/she cannot fully establish the in-service and/or nexus elements of service connection discussed above. Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection). Regarding the Veteran's reserve service, service connection may be granted for any disability resulting from disease or injury incurred or aggravated in the line of duty while performing active duty or ADT. Service connection may also be granted for any disability resulting from an injury in the line of duty while performing inactive duty for training (IDT), or for an acute myocardial infarction, cardiac arrest or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). After considering all information and lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Service treatment records from the Veteran's first period of active duty show that she was evaluated for complaints of chest pain in July 1986. An electrocardiogram (EKG) showed first degree AVB (atrioventricular block), but was otherwise within normal limits. In May 1988, the Veteran was evaluated for complaints of difficulty breathing and chest pain after any type of physical activity. These symptoms, along with headaches, runny nose, and coughing were attributed to a viral syndrome and/or rhinitis. However, other entries show that she was evaluated for additional episodes of chest pain in October 1988 and December 1988. In January 1989, the Veteran underwent a cardiac workup including an EKG and Bruce Protocol Stress Test. The EKG showed normal sinus rhythm with rare premature ventricular contractions, but was otherwise normal. The stress test was accomplished without difficulty two minutes into stage III. There were no ST changes of ischemia, and exercise tolerance was described as good. The Veteran was able to complete Stage III Step 2. 94% of PMHT was achieved and 9 METS were accomplished. The results were interpreted as normal response to near maximum graded exercise and frequent unifocal premature ventricular contractions. Further evaluation of the Veteran in February 1989, revealed findings that were considered most likely indicative of increased thyroid binding globulin associated with estrogen therapy as she was on a relatively high dose of Premarin. There was no evidence of thyroid disease on physical examination. The Veteran was reassured that ischemic cardiac disease was unlikely given the results of the Bruce Protocol to Stage II without ischemic changes. There are no additional follow-up evaluations or clinical findings to suggest that the chest pain episodes resulted in a chronic cardiovascular disorder or that provide a basis for such a diagnosis. A May 1990 periodic examination, conducted prior to the end of her first period of service, shows that the Veteran indicated some problem with swelling in her ankles and feet. However, she was determined to be qualified for retention. There are no records of any in-service treatment for chest pain during the Veteran's second period of service. Although she denied shortness of breath, chest pain/pressure, or heart palpitations/pounding at separation in May 1991, she did indicate a history of heart trouble and high blood pressure. Post service evidence consists of ten volumes of evidence that includes VA and private outpatient treatment records, VA examination reports, and SSA records. These records show the earliest medical evidence of cardiac treatment are VA outpatient treatment records dated in June 2001. A VA computerized problem list delineates the Veteran's various disorders, which include mitral valve disorder, atypical chest pain, cardiomegaly, congestive heart failure, and atrial flutter. In May 2002, the Veteran underwent an ablation procedure for symptomatic atrial flutter, which she had been experiencing since September 2001. The Veteran was afforded a VA examination in January 2003, at which time the examiner noted the Veteran may have had an arrhythmia problem in the service and that clearly she has had recurrent atrial flutter fibrillation within the last several years. The examiner referred to a past echocardiogram which showed some minor mitral regurgitation. A MUGA scan last year showed a 53 percent left ventricular ejection fraction, but appeared to have shown hypokinesia and enlargement of the right ventricle. The Veteran underwent a radiofrequency ablation for her atrial arrhythmia in May 2002, which was very successful as she has not had any arrhythmia since. Following examination of the Veteran, the clinical impression was recurrent atrial flutter fibrillation with related right ventricular abnormalities, now status post radiofrequency ablation with correction of the arrhythmia. Unfortunately, the examiner did not have the opportunity to review the claims file. So the opinion is based in significant part on an in-service history provided by the Veteran rather than on the objective medical evidence, particularly service treatment records. Because the medical opinion was rendered without the benefit of a review of all treatment records, the VA examiner was not informed of all the relevant facts when he rendered his opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008); see also Grover v. West, 12 Vet. App. 109, 112 (1999) (a post-service reference to symptoms in service, without a review of service treatment records, is not competent medical evidence). The Veteran underwent additional VA examination in August 2009. The examiner noted complete review of the Veteran's then 9-volume claims file. Also noted was the Veteran's medical history of chronic atrial fibrillation. She was status post failed ablation in 2002 and had also been diagnosed with congestive heart failure, diastolic due to poorly controlled hypertension. The Veteran had undergone a complete cardiology evaluation for preoperative clearance in May 2009, which supported the diagnoses of compensated diastolic heart failure and rate controlled fibrillation. The Veteran had no evidence of coronary artery disease. The examiner noted that the Veteran also had extensive workup for coronary artery disease over the past couple of years, including a left heart catheterization in February 2008, which showed normal coronaries and an ejection fraction of 55-60 percent. She also had multiple nuclear stress tests, the most recent showing normal images and left ventricular ejection fraction of 61 percent. After examination of the Veteran, the clinical impression was chronic atrial fibrillation, rate controlled; chronic anticoagulation; diastolic heart failure, secondary to poorly controlled hypertension; and dsylipidemia without evidence of any coronary artery disease. The examiner determined that, inasmuch as the Veteran's heart problems were not atypical of an older patient, there was no reason to believe that they should be attributed to her military service. The examiner explained that while the Veteran was treated for complaints of chest pain it was important to note that she had clean coronaries and that therefore the chest pain should be attributed to another etiology. Also, the Veteran does have some lower extremity edema and did complain of those problems while in the service. However, this would be a symptom of left heart failure, not right heart failure (diastolic dysfunction), and therefore should likely also be attributed to a different etiology. The examiner concluded that it was not likely that the Veteran's heart disability could be attributed to service. In October 2009, VA received what is arguably a medical opinion in support of her claim from the Veteran's representative, who is a Ph.D. Referring to the August 2009 VA examination report, the representative took issue with the examiner's conclusion that the Veteran's multiple heart problems were "common to an older person," stating that such a conclusion did not rule out the onset of these symptoms at a much earlier age. The representative also noted that the Veteran served irregularly between 1982 and 1991 and complained of lower extremity edema during service. He noted that while the Veteran's separation examination was unremarkable, it did not include a detailed heart examination that might have noted such symptoms. He then concluded that it was as likely as not that the Veteran's increasing heart problems may have gradually begun while in service and that service connection was warranted. The representative's credentials are not of record. To that end, the case was remanded by the Board in June 2010, and again in January 2012, for information regarding the representative's educational and employment background in order to assess his clinical experience evaluating cardiovascular problems, and to determine whether he had actually treated the Veteran. In April 2012, the Veteran indicated that she could not find any information concerning the representative. See VA Form 21-4142. As a result, there is no adequate foundation in the current record to establish that the Veteran's representative has the education, training, or clinical experience to offer a medical diagnosis or nexus opinion relative to the cause of cardiovascular disorders. Cf. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). With all due respect, therefore, his opinion is entitled to little probative weight in this case. Unfortunately, the evidence of record does not provide any competent and credible basis for holding that the Veteran's claimed heart problems were incurred in service. There is no disputing that the Veteran complained of chest pain during service and even noted a history of heart trouble at discharge, which she is competent to report and credible in this regard. However chest pain, while the type of symptom capable of lay observation, is not equivalent to a diagnosis of a chronic heart disorder. Moreover, the Veteran's in-service cardiac workup was essentially negative at that time. Merely establishing treatment for symptoms while in service is not tantamount to granting service connection because there also has to be chronic (meaning permanent) residual disability resulting from that condition or injury. See also Chelte v. Brown, 10 Vet. App. 268 (1997) (observing that a "current disability" means a disability shown by competent evidence to exist). Rather, the earliest recorded medical history places the presence of heart problems in 2001, 10 years after the Veteran's separation from active service in 1991. That is to say, there is no corroborative evidence on file, establishing that the Veteran sought or required treatment or evaluation for heart problems during the decade after her service had ended, consistent with 38 C.F.R. § 3.303(b), nor has she provided competent and credible assertions of continuity of cardiac symptoms since service. Savage, supra. It is also impossible to grant service connection on the basis of the manifestation of a chronic disability (e.g., cardiovascular disease) within one year after separation from service. 38 C.F.R. §§ 3.307 and 3.309. Although not a dispositive factor, the significant lapse in time between service and the initial onset of post-service complaints may be considered as part of the analysis of a service connection claim. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the only competent medical evidence addressing the nexus requirement is the 2009 VA medical report in which the examiner disputed the notion that the Veteran's heart problems were coincident with her military service. See Hickson, supra. The Board finds the 2009 VA opinion highly probative as it is based upon a complete review of the Veteran's entire claims file and supported by detailed rationale. The VA examiner considered the Veteran's self-reported history, the relevant history as contained in medical records from service onward, and her beliefs that her current heart problems had their onset during her military service-and discussed her symptoms in the context of that history. As a result, the examiner was able to address fully the salient question as to the origin of the Veteran's claimed heart problems and their relationship to military service. Therefore, after weighing all the evidence, the Board finds greater probative value in the 2009 VA examiner's conclusions and, in light of the other evidence of record, concludes that negative nexus opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). In reaching this conclusion, the Board has not overlooked the Veteran's contentions; her statements to healthcare providers; or her testimony. Her primary assertion is that her current heart problems are related to service. The Board is aware that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994) Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Davidson v. Shinseki, 581 F.3d 1313, 1316. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Federal Circuit Court also held in Buchanan (and Davidson and Jandreau), however, that the Board retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Thus, to ultimately have probative value, the Veteran's assertions also have to be credible and judged in relation to the other evidence in the file-including any medical evidence addressing the determinative issue of causation. See Rucker v. Brown, 10 Vet. App. 67 (1997) and Layno, 6 Vet. App. at 469 (1994) (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")). That said, the Veteran is not a medical professional, and her beliefs and statements about medical matters do not constitute competent evidence on matters of medical etiology or diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). A veteran generally can report his or her observations concerning symptoms, but in this particular case, the Veteran is not competent to establish a current diagnosis by her lay statements as such would require medical expertise and diagnostic testing in order for a correct diagnosis to be rendered. In other words, cardiac disorders, such as the Veteran's congestive heart failure are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment on their etiology. While the Veteran is competent to report experiencing chest pain during service, she is not competent to ascribe the chest pain to a particular diagnosis or, in turn, relate it to her military service. In this case her opinion that her chest pain during service was the onset of her current chronic heart problems, is far outweighed by the more thoroughly explained and detailed opinion from the VA examining and treating medical professional. Although the Board recognizes the sincerity of the arguments advanced by the Veteran, her contentions as to the etiology/onset of her claimed heart problems are not statements merely about symptoms, an observable medical condition, or a contemporaneous medical diagnosis, but rather clearly fall within the realm of requiring medical expertise, which she simply does not have. Jandreau supra & Buchanan supra. Accordingly, the preponderance of the evidence is against the claim and there is no reasonable doubt to be resolved. 38 U.S.C.A. § 5107(b). ORDER Service connection for a cardiovascular disorder is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs