Citation Nr: 1306076	
Decision Date: 02/21/13    Archive Date: 02/27/13

DOCKET NO.  10-17 333	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for a heart disorder.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Veteran and spouse	


ATTORNEY FOR THE BOARD

Ann L. Kreske, Counsel


INTRODUCTION

The Veteran had active service from January 1958 to January 1961.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 decision, which, in pertinent part, denied service connection for a heart disorder.  A videoconference hearing before the undersigned was held in March 2012.  A transcript of the hearing has been associated with the claims folder.

With respect to the issue on appeal, the Board remanded it for further development in May 2012.  The Board acknowledges that it has a duty to ensure compliance with its remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  For reasons explained in greater detail below, the Board finds that there is substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance).

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).


FINDINGS OF FACT

The most credible evidence does not show that the Veteran currently has, or had at any distinct time during the course of his appeal, a diagnosed heart disorder.


CONCLUSION OF LAW

Criteria for service connection for a heart disorder have not been met.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and to Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2012); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

In this case, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in April 2010 - prior to the May 2010 RO decision in this matter - that addressed the notice elements.  This letter informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  It also informed the Veteran of how VA assigns disability ratings and how an effective date is established.  See Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent medical records and providing an examination when necessary.  38 C.F.R. § 5103A; 38 C.F.R. § 3.159.  In this case, the RO has obtained and associated with the claims file all service treatment records and all VA and private medical records.  The Veteran was examined by VA during the pendency of this appeal.  Additionally, neither the Veteran nor his representative have made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the issues on appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 120 S. Ct. 1696 (2009).

The Veteran also testified at a videoconference hearing before the undersigned in March 2012.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the Veterans Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.   

Here, during the hearing, the VLJ asked specific questions directed at identifying whether the elements meeting the criteria for service connection were present in this case.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the videoconference hearing. 

Thus, the Board finds that VA's duties to notify and assist have been met, and therefore there is no prejudice to the Veteran in adjudicating this appeal.

Finally, as noted above, the Board, in relevant part, remanded the Veteran's claim on appeal in May 2012 for the RO/AMC to obtain the Veteran's VA treatment records dated from July 2011, to attempt to obtain any private treatment records from all identified sources not already of record, and, thereafter, to schedule the Veteran for a VA examination.  A review of the Veteran's claims folder reflects that VA treatment records dated from July 2011 have been obtained and associated with the Veteran's electronic file, and that a VA examination was provided to the Veteran in July 2012.  Furthermore, the Veteran did not provide authorization to obtain private treatment records, when requested to do so.  

The July 2012 VA examination substantially complies with the Board's May 2012 remand directives as it responded to the questions posed by the Board.  Since the requested development has been completed, the case may proceed without prejudice to the Veteran.  Stegall v. West, 11 Vet. App. 268 (1998).  

II.  Service Connection Claim

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  The second and third elements may be established by showing continuity of symptomatology.  Continuity of symptomatology may be shown by demonstrating "(1) that a condition was 'noted' during service or any applicable presumption period; (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."  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  See Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also, Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  See McClain v. Nicholson, 21 Vet. App. 319 (2007). 

The Veteran has asserted that he was diagnosed with a heart murmur in service, and contends that he has a heart disorder that resulted from wheezing and pneumonia, for which he was hospitalized during service.  

Service treatment records showed that the Veteran was noted to have a heart murmur shortly after service enlistment and that he underwent extensive cardiac work-up to determine the nature and extent of any identified heart problems. However, no additional cardiovascular abnormalities were found.  The diagnosis was functional heart murmur, and the Veteran was returned to full duty without any restrictions.  Service treatment records showed no further complaints, treatment, abnormalities or diagnosis for any cardiac problems in service, including at the time of his separation examination in December 1960. 

In April 2010, the Veteran was examined by VA to determine whether he had a heart disorder, and, if so, whether any identified disorder was related to his heart murmur in service.  The examiner indicated that there was no history of hypertension, myocardial infarction, valvular or congestive heart disease, or other heart disease, and that the Veteran denied any history of chest pains or night sweats. On examination, there was no evidence of a murmur and an electrocardiogram (EKG) showed a normal sinus rhythm with a nonspecific ST abnormality.  The examiner noted that the Veteran was not claiming to have coronary artery disease (CAD); therefore, a stress test was not clinically indicated.  The diagnoses were no evidence of CAD or cardiac murmur. The examiner commented that, as there was no diagnosis of a heart condition, no opinion was possible. 

However, in a letter received in February 2012, a VA nurse practitioner reported that she has been treating the Veteran for multiple medical problems, including CAD, since April 2011.  

Given this evidence, the Board remanded the Veteran's claim to obtain a medical opinion as to whether the Veteran had a current heart disability related to service.  This examination was provided in July 2012.  The examiner noted the Veteran's in-service history of receiving a diagnosis of functional heart murmur, without any evidence of heart disease.  Post-service, the Veteran reported no cardiac history, though he reported a history of shortness of breath and chest pain.  In this regard, he was previously provided a stress echocardiography prior to surgery to remove a lung abscess and his heart was found to be normal, with no ischemia.  Previous X-rays and imagings of the heart also showed no abnormality.  Examination showed a normal heart, with no evidence of a heart disorder or CAD.  The examiner indicated that there was no diagnosis of a heart condition.

A review of subsequently received VA treatment records shows they include CAD when listing medical problems.  There are, however, no identified heart-related symptoms, treatment for any such disorder or symptoms, or reference to diagnostic studied relating to a heart disorder.  The Board considers the reports of medical examinations conducted to specifically ascertain whether a heart disorder is present to be more probative of that question than the unsupported inclusion of such a condition on a lengthy list of medical problems.  Thus, the greater weight of the evidence supports the conclusion the Veteran does not have a heart disorder.  

Concerning the Veteran's contentions that he currently has a heart disorder, he is not considered competent to address a complex medical question such as diagnosing a heart disorder, since he is not shown to be qualified through education, training, and expertise to offer such an opinion.  38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  As such, while the Veteran asserts that he has a current heart disability, the Board concludes that his statements are simply not sufficiently competent to establish the presence of a current heart disability.  

As indicated above, the Board obtained two VA examinations to investigate the Veteran's allegations, but as described, they simply failed to find the presence of a heart disorder.  Therefore, based on the record as described above, the Board finds the evidence does not support the conclusion that a heart disorder was incurred in or aggravated by service, and the Veteran's claim of entitlement to service connection for a heart disorder is denied.


ORDER

Service connection for a heart disorder is denied.





____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs