Citation Nr: 1305111 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 06-37 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for congestive heart failure, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from August 1963 to November 1968. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). On his VA Form 9, the Veteran requested a Board hearing, and a hearing was scheduled for October 27, 2009. However, in September 2009, he submitted correspondence indicating he wished to cancel the hearing, and requested that his records be forwarded to the Board to for consideration of his appeal based on the evidence already of record. Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing. Subsequently, the Board remanded the claim for further development in February 2010. As discussed below, the development requested has been completed. Thus, the Board will proceed with appellate review. FINDINGS OF FACT 1. The Veteran did not have any in-country service in Vietnam. 2. The Veteran was not exposed to Agent Orange or any other herbicide during active service. 3. Symptoms of congestive heart failure were not chronic in service. 4. Symptoms of congestive heart failure have not been continuous since service separation. 5. The Veteran's congestive heart failure is not related to service. CONCLUSION OF LAW Congestive heart failure was not incurred in or aggravated by service, and service connection for congestive heart failure may not be presumed based on herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely April 2005 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection, what information and evidence must be submitted by the Veteran, and what information or evidence VA will attempt to obtain. The May 2011 Supplemental Statement of the Case described how VA determines disability ratings and effective dates. The Veteran was not prejudiced by timing of Dingess notice, as the Board does not reach the issues of disability rating and effective date herein. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's statements. As mentioned above, in a February 2010 decision, the Board remanded the claim for further development. Specifically, the Board stated that VA should attempt to obtain additional information and records regarding the "disability" benefits the Veteran referred to in an August 2006 VA treatment note, and that the Veteran should specifically be asked to inform VA as to whether these disability benefits came from the Social Security Administration or from another source. At the August 2006 VA visit, the Veteran stated that he had been on "disability since 1991 because of congestive heart failure." Following this Board's remand, VA sent the Veteran a letter in March 2010 that asked the Veteran to clarify the disability benefits he referred to at the August 2006 VA visit, citing to the specific statement made at that visit, and asking the Veteran to complete a VA Form 21-4138 to provide VA with information about those benefits. The Veteran responded by enclosing a February 1992 letter from VA that informed him that he had been awarded disability pension benefits. The Board notes that a February 1992 rating decision granted disability pension benefits, effective from October 1991. Thus, despite the Veteran's representative's argument in the December 2011 Post-Remand Brief that the March 2010 letter did not specifically ask the necessary question as directed by the Board's remand, and that the Veteran did not understand what the letter was asking, it appears that the Veteran did, indeed, understand the question and provided the requested information. Thus, the development requested by this Board in its February 2010 remand has been completed to the extent possible, and no additional development is required. The Board notes that in an undated statement received in November 2006, the Veteran alleged that he made fifty or more trips by air from the ship he was stationed on to various Marine bases in Vietnam for mail and part and commented that the information could in the ship's log. The Board finds that additional development for ships logs is not warranted. According to the National Archives and Records Administration (NARA) and the Naval Historical Center, command histories, deck logs, and muster rolls/personnel diaries were the only administrative records produced by commissioned U.S. Navy ships during the Vietnam war that were permanently retained. It has been indicated that those records, however, did not normally note individuals arriving or going ashore on a routine basis. Further, although deck logs may have indicated aircraft or boats arriving/departing, the logs did not list passengers by name, unless that individual was a very important person or a high-ranking official. There is no indication that information regarding the Veteran would be located in any ship log and no further duty to assist with regard to such records is necessary. The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed service connection for congestive heart failure; however, the Board finds that a VA examination is not necessary in order to decide this issue. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability, and (2) indicate that those symptoms may be associated with her active military service. In this case, because the weight of the evidence demonstrates that the Veteran did not have service in Vietnam, was not exposed to herbicides while serving aboard the USS Bon Homme Richard or in any other location, and did not otherwise experience in-service injury or disease of congestive heart failure during service, there is no duty to provide a VA medical examination. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (holding that that where the evidence has failed to establish an in-service injury, disease, or event, VA is not obligated to provide a medical examination). As explained in this decision, the Board also finds that the weight of the evidence demonstrates no chronic symptoms of congestive heart failure in service and no continuity of symptoms of congestive heart failure since service separation. Because there is no in-service injury or disease to which a competent medical opinion could relate the current disability, there is no reasonable possibility that a VA examination or opinion could aid in substantiating the current claim for service connection for congestive heart failure. See 38 U.S.C.A. § 5103A(a)(2) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's congestive heart failure would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury, disease, or exposure to herbicides, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's congestive heart failure and military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of an in-service injury, disease, or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Notably, the Veteran has not 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 Veteran is required to fulfill VA's duty to assist 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). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In certain cases, service connection can be presumed if a veteran was exposed to a herbicide agent during active service. Under the current Code of Federal Regulations (C.F.R.), presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; multiple myeloma; non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); ischemic heart disease; Parkinson's disease; hairy cell leukemia; and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e) (2011). Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). The presumption of herbicide exposure is warranted for service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (2011); see also Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 77 U.S.L.W. 3267 (Jan. 21, 2009) (No. 08-525). In order to establish qualifying "service in Vietnam," a veteran must demonstrate actual duty or visitation in the Republic of Vietnam to have qualifying service. 38 C.F.R. § 3.307(a)(6)(iii) (2011); see also VAOPGCPREC 27-97. Pursuant to Section 3 of the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-608 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); 74 Fed. Reg. 21,258-260 (May 7, 2009). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all 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 a veteran or obtained on his 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); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In-Service Exposure to Herbicides The Veteran has filed a claim for service connection for congestive heart failure, to include as due to herbicide exposure. He contends that, while stationed on the USS Bon Homme Richard off the shores of Vietnam, he made more than 50 trips via plane to various Marine bases in Vietnam to get mail and parts. Having considered the Veteran's contentions and statements, and after a review of all the evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran did not have any in-country service in the Republic of Vietnam at any time during the regulatory period from January 1962 to May 1975. The Veteran was in active service from August 1963 to November 1968 of the Vietnam period, and served on the USS Bon Homme Richard from February 1965 to April 1967. The National Personnel Records Center (NPRC) confirmed that the USS Bon Homme Richard was in the official waters of Vietnam during the time that the Veteran was serving on the ship, but was unable to determine whether the Veteran had any in-country service in Vietnam. Moreover, his service personnel records do not document any service in Vietnam, nor do his service treatment records document treatment for any injuries in Vietnam, even though, in September 1978, the Veteran claimed that he suffered a broken rib when his helicopter was shot down by enemy fire near Dung Ho, Vietnam in 1967. His DD Form 214 reflects a Military Occupational Specialty of "general clerk," and a performance evaluation for the period from September 1966 to March 1967, when the Veteran was on board the USS Bon Homme Richard, reflects that his primary assignment was "vent cleaning." The Board notes that a form DD-215 correct his Military Occupational Specialty to AZ-6300, Aviation Maintenance Administrationman. His assigned duties, as documented in his service personnel records, do not indicate in-country service in Vietnam. In support of his contention of in-country service in Vietnam, the Veteran submitted a May 2011 "buddy statement" from R.P.F., who wrote that he served aboard the USS Bon Homme Richard from March 1965 to April 1966 as Assistant Aircraft Maintenance Officer. He stated that "qualified V-6 men" accompanied CIA flights for maintenance purposes, and that these flights generally involved the transport of mail, parts, and personnel from bases in South Vietnam to and from the USS Bon Homme Richard. R.P.F. further stated that, because these flights were usually same day missions, orders were not cut, and there would be no documentation of these flights in the Veteran's file. He then named two individuals, neither of which was the Veteran, who served as pilot and co-pilot of these flights. The Board finds that the Veteran's service personnel records and the findings of the NPRC, which do not reflect in-country service in Vietnam, to be more probative than the May 2011 buddy statement of R.P.F. It does not appear from R.P.F.'s statement that he has personal knowledge of the Veteran being aboard the CIA flights to bases in Vietnam, as he merely states that "qualified V-6 men" accompanied the flights on occasion, and does not specifically state that the Veteran accompanied the flights. Moreover, while he lists the names of the pilot and co-pilot of the flights, he does not specifically name the Veteran as one of the individuals accompanying the flights to Vietnam or indicate the frequency or number of occasions the Veteran was on the flights. In addition, there is no other indication in the Veteran's service personnel or treatment records that he was exposed to herbicides. While the Veteran is competent to state what his duties were during active service, the Board finds his statements regarding in-country service in Vietnam to be not credible. For these reasons, the Board finds that the weight of the evidence is against a finding of herbicide exposure during active service, and presumptive service connection for ischemic heart disease based on exposure to herbicides is not warranted. Thus, even though the Veteran has been diagnosed with coronary artery disease, which is specifically listed among the Agent Orange-related diseases enumerated in 38 C.F.R. § 3.309(e), a medical nexus may not be presumed as a matter of law because the Veteran does not meet the requirements of 38 C.F.R. § 3.307(a)(6) or herbicide exposure. Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, the Board is obligated to fully consider the Veteran's service connection claims on a direct basis. See Combee, 34 F.3d at 1043-1044. Service Connection for Congestive Heart Failure After a review of all the evidence of record, lay and medical, the Board finds that, except for an episode of tachycardia following strenuous exercise noted in August 1963, the weight of the evidence demonstrates that no relevant injury or disease occurred during service, and that the weight of the evidence demonstrates that symptoms of congestive heart failure were not chronic in service. The August 1963 enlistment examination report is negative for any report, complaints, or diagnosis of heart problems, and a chest X-ray was normal. A week later, service treatment records indicate that the Veteran experienced an episode of tachycardia following strenuous exercise, but the remainder of the service treatment records, including the November 1968 service separation examination report, are negative for any history, complaints, treatment, or findings of a heart problem, and a chest X-ray taken at separation was again normal. In addition, at a March 1968 physical examination, the Veteran checked "no" next to "pain or pressure in chest," and "palpitation or pounding heart," on his Report of Medical History. In short, while the Veteran may have had a single episode of tachycardia in August 1963, the condition resolved, as there is no indication of further treatment or complaints. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the weight of the evidence demonstrates that congestive heart failure symptoms have not been continuous since service separation in November 1968. As mentioned above, the November 1968 service separation examination report is negative for any history, complaints, treatment, or findings of a heart problem. Following separation from service in November 1968, the evidence of record shows no complaints, diagnosis, or treatment for a heart problem until 1991, when the Veteran was diagnosed with coronary artery disease. The absence of post-service complaints, findings, diagnosis, or treatment for 23 years after service is one factor that tends to weigh against a finding of continuous symptoms of congestive heart failure after service separation. See Buchanan, 451 F.3d 1336 (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). Other evidence of record showing that symptoms of congestive heart failure have not been continuous since service separation includes an April 1969 VA examination report that indicates normal examination of the cardiovascular system, with normal cardiac size and configuration, normal sinus rhythm, normal tones, and no murmurs, and no report or complaints of symptoms of a heart problem. The Veteran has not contended that his congestive heart failure began in service or that his symptoms have continued while in service and following service. However, to the extent that his current statements can be interpreted as such, the Board finds that, while the Veteran is competent to report the onset of his congestive heart failure symptoms, any recent report of continuous symptoms since service is outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and is not credible. See Charles, 16 Vet. App. 370. The Board finds that the Veteran's statements as to chronic congestive heart failure symptoms in service and continuous congestive heart failure symptoms after service are not credible because they are outweighed by other evidence of record that includes the absence of in-service complaints or symptoms of congestive heart failure, other than the single episode of tachycardia following exercise in August 1963 which resolved prior to separation in November 1968; the March 1968 Report of Medical History on which the Veteran specifically denied any heart problems; the negative clinical examination at the November 1968 service discharge examination at which no heart problems were reported or diagnosed; the absence of any post-service history, complaints, symptoms, diagnosis, or treatment of a heart problem for 23 years after service until 1991; and the Veteran's claims for service connection for multiple disorders in February 1969 and September 1978 without mention of a heart problem. Further, as noted above, a post-service VA examination in 1969 indicates normal examination of the heart with no report of symptoms of congestive heart failure. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology (Savage v. Gober, 10 Vet. App. 488, 496 (1997)); however, here, the Veteran filed a claim with VA for service connection for multiple disorders in February 1969 and September 1978, but did not claim or mention any heart problems at that time. This suggests to the Board that there was no pertinent congestive heart failure symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that a veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In this case, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran's inaction regarding a claim for congestive heart failure, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran's belief that he did not sustain an injury or disease manifesting congestive heart failure in service, or the lack of congestive heart failure symptomatology at the time he filed the claim, or both. For these reasons, the Board finds that the weight of the lay and medical evidence that is of record outweighs the Veteran's more recent contentions regarding in-service chronic congestive heart failure symptoms and post-service congestive heart failure symptoms. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran's current congestive heart failure and his military service, including no credible evidence of continuity of symptomatology of a heart problem or in-service herbicide exposure which would serve either as a nexus to service or as the factual basis for a favorable medical nexus opinion; therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for congestive heart failure, and outweighs any recent contentions regarding in-service chronic congestive heart failure symptoms and post-service congestive heart failure symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for congestive heart failure, to include as due to herbicide exposure, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs