Citation Nr: 1304243 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 08-21 393 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for an upper respiratory disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In February 2011, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to afford the Veteran a VA medical examination and nexus opinion. The Veteran was afforded an examination in March 2012. The action specified in the February 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issue of entitlement to service connection for a respiratory disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran does not have ischemic heart disease or any other heart disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1110, 1101, 1112, 1113 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303, 3.304, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (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 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). "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)). 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) (2012). Certain chronic diseases, including cardiovascular-renal 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, (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2012). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310(2012). Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322 (2012). Heart Disability The Veteran is seeking service connection for a heart disability, either on a direct basis or as secondary to her service connected anxiety disorder. Service treatment records note recurring complaints of chest pain, accompanied by pain in the thoracic area of the back; however, this pain was never attributed to a heart condition. Chest x-rays and EEGs were normal. On the Veteran's separation examination in October 1969, the Veteran's heart, lungs, chest, and vascular system were found to be within normal limits. The Veteran's blood pressure was 110/60. While the Veteran complained of chest pains on a Report of Medical History completed at the same time, the notation made by the examiner described the Veteran's chest pains as "functional". Post-service, both VA and private medical records document the Veteran's extensive complaints of chest pain. However, there is no evidence of any heart disability within one year of service. In 1980, the Veteran was diagnosed at Hennepin County Medical Center with sinus tachycardia, cardiomegaly, and mitral valve prolapse. An October 1980 Clinical Summary notes that there is a questionable history of rheumatic heart disease in 1965 (prior to the Veteran's enlistment) and that a 1977 chest x-ray was normal, a 1971 EEG was normal, and a 1974 EKG was normal. A December 1985 cardiac catheterization found mild pulmonary stenosis. However, subsequent diagnostic testing over the following two decades was within normal limits, making it unclear whether the Veteran actually had any heart disability. See, e.g., VA C & P Examination (March 21, 2012) (listing a history of relevant cardiac testing from 1985 to 2010). In March 2012, the Veteran was afforded a VA examination. The Veteran complained of angina, which she reported occurred with physical activity such as walking more than two blocks or going up stairs. She also complained of dyspnea on exertion, constant fatigue, and nearly constant dizziness. She reported that she began having chest pains in 1969. She denied any history of myocardial infarction. She thought she might have a history of congestive heart failure and rheumatic heart disease, but the examiner noted that subsequent cardiac testing does not support this. She was currently taking medication to treat hypertension. On examination, the Veteran's heart size was normal on auscultation. Rhythm was regular and heart sounds were normal. The Veteran's heart rate was 73. There was no evidence of edema, rales, or liver enlargement. A March 2010 chest x-ray was clear. An EKG showed normal sinus rhythm, with minimal voltage criteria for LVH and a nonspecific ST abnormality. In addition to a physical examination of the Veteran, the examiner reviewed the Veteran's claims file. The examiner concluded that the Veteran does not have ischemic heart disease or any other heart disorder. Based on the above evidence, the Board finds that entitlement to service connection for a heart disability cannot be granted. First, the March 2012 VA examiner has concluded that the Veteran does not in fact suffer from ischemic heart disease or any other heart condition. Under 38 U.S.C.A. § 1131, a claimant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). While the Veteran has in the past been diagnosed with tachycardia, cardiomegaly, mitral valve prolapse, and pulmonary stenosis, these diagnoses were made decades ago and subsequent diagnostic testing has not confirmed these findings. The VA examiner had an opportunity to review the entire record and has concluded based on a review of the Veteran's entire medical history that she does not suffer from any current heart disability. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board finds the conclusion of the VA examiner that the Veteran does not suffer from a current heart disability more probative than the findings of the Veteran's treatment providers made ten or twenty years ago. Not only were the VA examiner's findings based on a recent examination of the Veteran, reflecting her current physical state, but the examiner had an opportunity to review the Veteran's claims file, including VA and private treatment records. Other medical professionals did not have access to such an extensive medical history. The Board recognizes that the Veteran has complained of chest pains for decades, however, the Veteran must understand that pain is a symptom, and that absent some evidence of an underlying pathology, chest pains are not a disability for which service connection can be granted. Furthermore, even assuming that the Veteran suffers from a heart disability for which service connection could be granted, the Board finds no evidence that such a disability is related to service. Although the Veteran complained of chest pain in service, her service treatment records are negative for any evidence that this symptom was the result of a heart disability and the Board can find no evidence that any of the Veteran's treatment providers has opined that she has a current heart disability related to service. Despite the extensive evidence of record, the actual cause of the Veteran's chest pains remains unclear. While the Veteran herself appears to be convinced that she suffers from some type of heart disability and that this condition is related to service, she has not demonstrated that she has any knowledge or training in diagnosing or determining the etiology of such conditions. In other words, she is a lay person, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer etiology opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion as to the etiology of a condition depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the question of whether the Veteran currently has a heart disability and, if so, whether it is related to service is too complex to be addressed by a layperson. This condition or etiology is not amenable to observation alone. Rather it is common knowledge that such disabilities are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinion of the nature and etiology of her current disability, if any, is not competent evidence and is entitled to low probative weight. For all the above reasons, entitlement to service connection for a heart disability is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 & Supp. 2010); 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 is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the duty to notify was satisfied by a letter sent to the Veteran in July 2007. This letter informed the Veteran of what evidence was required to substantiate her claim as well as of VA and the Veteran's respective duties for obtaining evidence. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran submitted private treatment records. The appellant was afforded a VA medical examination in March 2012. The examination is adequate and probative for VA purposes because the examiner relied on sufficient facts and data, provided a rationale for the opinion rendered, and there is no reason to believe that the examiner did not reliably apply reliable scientific principles to the facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to service connection for a heart disability is denied. REMAND The Veteran is also seeking entitlement to service connection for an upper respiratory disability, to include as secondary to her service connected acquired psychiatric disability. The Veteran was afforded a VA examination in March 2012. The examiner concluded the Veteran suffered from chronic allergic rhinitis, but that this disability was not caused by or related to her military service or caused by her acquired psychiatric disability. However, she offered no explanation for these conclusions. A medical opinion that contains only data and conclusions is accorded no weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Once VA undertakes the effort to provide an examination with respect to a claim of entitlement to service connection, whether or not statutorily obligated to do so, the duty to assist requires that it be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Unfortunately, this issue must be remanded so that the March 2012 can be given an opportunity to provide a rationale for her conclusions. Accordingly, the case is REMANDED for the following action: 1. Return the March 2012 VA examination and the Veteran's claims file to the examiner who performed the March 2012 VA examination, Dr. M.O., with a request to provide a rationale for each of her conclusions. If this examiner is no longer available to complete an addendum to her opinion, the Veteran should be scheduled for a new VA examination by a pulmonologist to ascertain the origins or etiology of her upper respiratory disorders. The claims folders are to be provided to the examiner for review in conjunction with the examination and the examination report should reflect that the examiner reviewed the claims folders. After a review of the claims folders and an examination of the Veteran, the examiner should provide answers to the following questions: (a) What are the diagnoses for all of the Veteran's upper respiratory disorders? (b) Is it at least as likely as not that any of the Veteran's current upper respiratory disorders were caused by her military service? (c) Is it at least as likely as not that any of the Veteran's upper respiratory disorders were caused by her service connected psychiatric disorder? (d) Is it at least as likely as not that any of the Veteran's upper respiratory disorders were aggravated by her service connected psychiatric disorder? Note 1: In providing answers to the above questions, if the examiner concludes that any of the Veteran's upper respiratory disorders were aggravated by her service connected psychiatric disorder, including the medication she takes to treat her psychiatric disorder, the examiner should provide a base-line as to the severity of the upper respiratory disorder before being aggravated by her service connected psychiatric disorder. Note 2: In providing answers to the above questions, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. Note 3: The Veteran's subjective history of her symptoms should be considered. Note 4: The rationale for all opinions expressed in the examination above should be provided. If the examiner(s) is unable to offer an opinion without resorting to speculation, he or she should provide a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide an opinion is based on the limits of medical knowledge. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and her representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. 2012). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs