Citation Nr: 1306237 Decision Date: 02/22/13 Archive Date: 02/27/13 DOCKET NO. 08-06 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for heart disease (also claimed as heart attacks). 2. Entitlement to service connection for lung disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from September 1956 to September 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision on behalf of the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran and his wife testified before a Decision Review Officer in April 2008 and testified in June 2009 before a Veterans Law Judge who is unavailable to participate in this decision. Copies of the transcripts of those hearings are of record. In December 2012, the Veteran was provided an opportunity for another Board hearing. As he did not respond to that correspondence, his request for a Board hearing is considered to have been satisfied. In a September 2009 decision, the Board found that new and material evidence had been submitted to reopen the claims for service connection for heart disease and lung disease. The reopened claims were then remanded for additional development. The case was again remanded for additional development in June 2010. The Board finds that the requested development has been, to the extent possible, substantially completed. The Board also notes that the Veteran has provided documents in support of his appeal including copies of Army Regulation AR 601-270 effective January 1, 1966, but that no information was provided as to how these documents were relevant to the Veteran's appeal nor to his active service which ended in September 1957. Private treatment records received by VA in July 2012 and correspondence dated in July 2012 addressing the unavailability of other private medical records are found to be duplicative or cumulative of information previously considered by the agency of original jurisdiction. Although these documents were not addressed in a supplemental statement of the case, they are found to be not relevant to the present appeal. See 38 U.S.C.A. § 20.1304(c) (2012). 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 1. The most probative evidence of record shows that a heart disability was not manifest in service, was not manifest within one year of service, and is not shown to have developed as a result of an established event, injury, or disease during active service. 2. The most probative evidence of record shows that a lung disability was not manifest in service and is not shown to have developed as a result of an established event, injury, or disease during active service. CONCLUSIONS OF LAW 1. A heart disease was not incurred or aggravated as a result of active service. 38 U.S.C.A. §§ 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). 2. A lung disease was not incurred or aggravated as a result of active service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties 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). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in April 2006, October 2009, and June 2010. The notice requirements pertinent to the issues on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes a copy of a September 1957 separation examination report, a copy of his DD Form 214, VA treatment and examination reports, private treatment records, and statements and testimony in support of the claims. The record also shows the Veteran's additional service treatment and personnel records are unavailable and that they may have been lost due to fire at a government storage facility. In such cases, there is a heightened duty to assist him in developing the evidence that might support his claim, which includes the duty to search for alternative medical records. See Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). In correspondence dated in August 2004 VA notified the Veteran that the service department had been unable to locate his records and he was advised to provide records in his possession or to provide information for VA assistance in searching alternative sources for evidence to substantiate his claims. In a January 2009 Social Security Administration (SSA) report the RO was notified that the medical records associated with the Veteran's disability claim had been destroyed. The Veteran was notified of this information and that further efforts to obtain these records would be futile in a February 2009 supplemental statement of the case. A VA formal finding of unavailability of service treatment records was provided in January 2010. The claims were subsequently readjudicated. The development requested in the June 2010 Board remand, including the development of VA and private treatment records, has been substantially completed. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was notified of the efforts taken to obtain copies of private treatment records by telephone in July 2012 and he requested that his claims be adjudicated without these records. In a subsequent July 2012 statement the Veteran's service representative indicated he had no additional evidence to submit in support of his claims. The overall evidence of record also raises significant doubts as to the existence of any additional relevant service treatment records or private treatment records associated with treatment in 1963. Therefore, the Board finds that further attempts to obtain additional evidence would be futile. 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 VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider, to the extent they are found to be credible, the Veteran's reported complaints and symptoms. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The available medical evidence is sufficient for adequate determinations. There has been substantial compliance with all pertinent VA laws and regulations. Service Connection Claims Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection can be granted for certain diseases, including cardiovascular-renal disease and hypertension, if manifest to a degree of 10 percent or more within one year of separation from active service. The presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) 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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The United States Court of Appeals for Veterans Claims (Court) has also held that medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. See Clyburn v. West, 12 Vet. App. 296 (1999). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr, 21 Vet. App. 303. In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes 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), (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. In Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006), the Federal Circuit held that the lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2012). The relevant evidence of record includes a copy of a September 1957 service department report of medical examination. The purpose of the examination was listed as for discharge. Clinical evaluations of the heart, lungs and chest, and vascular system were normal. It was noted that a chest X-ray study was negative and that serology studies were "Cardio-Neg." Sitting blood pressure findings were 130/70. The examiner also noted there were no defects or diagnoses and that the Veteran's physical profile was P-1, U-1, L-1, H-1, E-1, and S-1. The Veteran's discharge report (DD Form 214) is not indicative of a separation because of a medical disability. Private hospital records dated in May 2001 noted the Veteran was treated for an acute/recent inferior wall myocardial infarction. A report of medical history at that time noted there was no history of shortness of breath before the current episode and no history of hypertension, transient ischemic attacks, stroke, or syncope. Records show the Veteran had a 100 percent occlusion of the right coronary artery and that he had a long history of tobacco use and of working in uranium mines. VA treatment records dated in July 2001 noted the Veteran reported his first onset of chest pain had been in early May 2001. He stated he believed it was due to heartburn. A July 2001 sedation/anesthesia pre-procedure screening shows he denied hypertension, respiratory difficult airway, pulmonary disease, and sleep apnea. A September 2001 report noted he denied any prior surgerical history before 1976, but that he reported a left arm injury in 1964 when he had been dragged by a horse. Subsequent records indicate he underwent back surgery in 1976 and that he had sustained injuries at that time in a three story fall while working in construction. Private treatment records dated in June 2003 noted the Veteran had been enrolled in a program for individuals who had worked in the uranium industry. It was noted the Veteran had been provided a diagnosis of chronic obstructive pulmonary disease (COPD). In correspondence dated in June 2004 the Veteran requested service connection for heart and lung disease. In correspondence received by VA in October 2005 he stated, in essence, that he was never given a reason why in training he could not keep up with the rest of the troops and that he had heart and lung problems that had continued since service. In a January 2007 statement the Veteran's spouse recalled having met the Veteran after he was discharged from service and that he told her he was always sick with chest pains, was dizzy, and had difficulty breathing. She stated that his condition had gotten worse and that in 1963 he had a heart attack. At his personal hearing in April 2008 the Veteran testified that he developed heart disease during active service and sustained a heart attack. He stated he had seen a physician during service because he was taking too many Alka-Seltzer tablets for his heart. He stated he had been unable to finish training to become a medic. He reported that he had subsequently been transferred to an engineering company as a truck driver. He stated that he had a heart attack in the field and was taken back to base and seen by medics. He described having had chest pain, pain radiating down his arm, and shortness of breath. He stated he was told to take an Alka-Seltzer and to burp. He reported he had experienced these symptoms prior to service and that he was treated for heart attacks at private hospitals in 1963 and 1977. At his June 2009 Board hearing the Veteran testified that he was first noted to have a heart condition during a physical examination prior to his discharge from active service. He reported that he had his first heart attack after service in 1963. He stated that during service he had complained of chest pain and shortness or breath and was told to take Alka-Seltzer. He stated that his doctors in 1963 told him he had scar tissue in his heart that had been caused by a heart attack. He reported that his lung disease was inter-related to his heart disease and congestive heart failure. A September 2010 VA examination report noted all twenty volumes of the Veteran's claim file had been reviewed and provided a substantially accurate summary of the evidence of record. Diagnoses of coronary artery disease with ischemic cardiomyopathy and COPD were provided. The examiner found that the Veteran's heart and lung diseases were not caused by or the result of military service and that they did not exist prior to service. It was noted that, in contrast to the story provided at that time, the discharge information showed he was discharged in excellent health and that chart notes stated his chest pains began three decades after discharge. His heart disease was found to be the result of family history, tobacco use, obesity, diabetes, hyperlipidemia, and hypertension. Additionally, his occupation as a uranium miner and very heavy tobacco use were found to be the cause of his COPD. VA examination in September 2011 included diagnoses of asthma and coronary artery disease. The examiner noted the Veteran's report of symptoms prior to service and events he reported that had occurred during and in the years after service, but that there was no documentation to support these claims. It was noted that his September 1957 discharge examination was entirely normal and that there was no documentation of a heart or lung problem prior to 2001. Notably, the examiner also indicated that the Veteran scored a "1" on all PULHES criteria, which meant that he was considered to be in excellent health at the time of his separation from service. There was no indication that he was discharged for medical reasons. Based on a review of the file, a thorough clinical evaluation, the Veteran's lay assertions, and accepted medical principles, the examiner concluded that it was less likely that the Veteran's current heart and respiratory disorders were incurred or aggravated as a result of active service. The examiner also noted that it was reported in the records system that the Veteran had approached his primary care provider on several occasions and requested a cardiologist or pulmonologist who would write a note indicating that his heart and lung disease were due to his military service. As an initial matter, the Board finds that the Veteran's statements as to having experienced heart and lung disease symptoms before or during active service, his statements as to having been discharged from service because of a myocardial infarction, his statements as to having had continuous symptomatology since active service or before approximately May 2001, and any medical statements based upon such information provided by the Veteran are not credible. Similarly, the statements of the Veteran's spouse to the extent they are based upon information the Veteran provided as to any symptoms before or during active service or which indicate heart or lung problems prior to May 2001 are found to be not credible. The overall evidence of record demonstrates the statements and testimony of the Veteran and his spouse as to heart and/or lung problems during service or prior to May 2001 are inconsistent with probative evidence, notably including the findings reported in a September 1957 service department report of medical examination and reports of medical history recorded in a May 2001 private hospital report. The September 1957 report shows the Veteran's heart, lungs, and vascular system were normal and his physical profile (PULHES) upon examination for discharge was 111111. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level of fitness) to a 4 (medical condition or physical defect that is below the level of medical fitness required for retention in the military service). The "P" stands for "physical capacity or stamina," the "U" indicates "upper extremities," the "L" is indicative of "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stands for "psychiatric condition."). The May 2001 reports show there was no prior history of hypertension, shortness of breath, transient ischemic attack, stroke, or syncope. The treatment provided in May 2001 was also described as related to an acute and recent inferior wall myocardial infarction. VA treatment records further indicate the Veteran has provided contradictory or inconsistent reports as to his medical history and the onset of heart and lung symptoms over the years. The September 1957 examination report and the May 2001 private hospital reports are found to be of high probative value, and in direct contradiction to the assertions of the Veteran and his spouse. In determining whether evidence submitted by a veteran is credible VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (superseded by statute for an unrelated point of law as stated by Duenas v. Principi, 18 Vet. App. 512 (2004)); see also Buchanan, 451 F.3d at 1337 (VA can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); Macarubbo v. Gober, 10 Vet. App. 388 (1997) (holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor); Pond v. West, 12 Vet. App. 341, 345 (1999) (holding in a case where the claimant was also a physician, and therefore a medical expert, that the Board should properly consider the appellant's own personal interest in the outcome of the case); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Court has held that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court has also held that "[Doctors'] diagnoses can be no better than the facts alleged by appellant." Swann v. Brown, 5 Vet. App. 229, 233 (1993). The Court in Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007), however, noted that a medical examiner may not impermissibly ignore an appellant's lay assertions that he sustained an injury during service. Based upon the evidence of record, the Board finds that a heart disability was not manifest in service, was not manifest within one year of service, and is not shown to have developed as a result of an established event, injury, or disease during active service and that a lung disability was not manifest in service and is not shown to have developed as a result of an established event, injury, or disease during active service. The competent medical evidence shows that the Veteran's heart and lung problems were initially manifest in the early 2000s, more than 40 years after separation from service. In this regard, the Board notes that a prolonged period without documented medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or disease was incurred in service, which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Here, the lack of clinical evidence reflecting treatment pertaining to the these disabilities until many years (four decades) after his discharge from active service, coupled with the fact that the Veteran has a history of heavy tobacco use and post-service occupational uranium exposure that have been cited in the development of these diseases, are against his claims for service connection. The Board has found the opinions of the September 2010 and September 2011 VA examiners to be persuasive, and has accorded them significant probative value. These opinions are shown to have been based upon examinations and a thorough review of the evidence of record - which includes 20 volumes of evidence. Notably, the examiners are shown to have adequately considered the lay statements of record, but to have, in essence, rejected the reports as to symptoms before, during, or after service prior to May 2001 as not credible for the reasons explained above. The Board has also found the Veteran's and his spouse's assertions to be lacking in credibility; therefore, they have limited probative value. When all the evidence is assembled, VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Here, for the reasons outlined above, the Board concludes that the preponderance of the evidence in this case is against the claims. Therefore, the claims for entitlement to service connection must be denied. ORDER Entitlement to service connection for a heart disorder is denied. Entitlement to service connection for lung disease is denied. ____________________________________________ SUSAN J. JANEC Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs