Citation Nr: 1306747 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 07-22 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a systolic heart murmur due to rheumatic heart disease. REPRESENTATION Appellant represented by: Christine M. Brown, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from June 1997 to June 2001. He had additional inactive duty and active duty with the National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge in September 2008. A transcript of the hearing is associated with the claims file. The Veteran was informed that the Veterans Law Judge who conducted his hearing was no longer at the Board in 2010. He was therefore presented with the opportunity to have another hearing if he so wished. 38 C.F.R. § 20.707. The Veteran failed to respond to this notification and it is thus properly considered by the undersigned Veterans Law Judge. In March 2009, the Board remanded the claim for additional development. Subsequently, in July 2011, the Board denied service connection for a systolic heart murmur on the basis that the preponderance of the evidence was against a finding that the Veteran's systolic heart murmur began in service or that it was aggravated by service. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court), which, by Order dated April 2012, granted a Joint Motion for Remand (Joint Motion). The Court found that the Board failed to apply the proper burden of proof for its July 2011 decision. FINDING OF FACT The clear and unmistakable evidence is against a finding that the Veteran's systolic heart murmur due to or as a result of rheumatic heart disease began in service or that it was aggravated by service. CONCLUSION OF LAW A systolic heart murmur due to rheumatic heart disease was not incurred in or aggravated by active service, nor may it be presumed to be related to service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in pre-rating correspondence dated August 2005 of the information and evidence needed to substantiate and complete his claim. The Veteran was provided with information regarding how disability evaluations and effective dates are assigned in January 2007 and the issue was readjudicated in a May 2007 statement of the case. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the SOC or SSOC, is sufficient to cure a timing defect). VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159(c) (4). The Veteran has been provided with VA examinations in September 2005 and May 2009. The claims file was returned in July 2009 to the May 2009 examiner for a review of the claims file and to provide a medical opinion. The Board finds that the examination reports and medical opinion obtained are adequate for rating purposes because the opinion was based on thorough examination, a description of the Veteran's pertinent medical history, a review of the claims file, and appropriate testing. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There is no evidence that any VA error in notifying or assisting the Veteran reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. Laws and Regulations 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; 38 C.F.R. § 3.303(a). Service connection may also be warranted 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). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment into service, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. See, 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). 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; 38 C.F.R. § 3.303(a). In order to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C. § 1111 ], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2012). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 the 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that his systolic heart murmur was incurred in or aggravated by his military service. For the reasons described below, the Board disagrees. The Veteran's May 1997 report of medical examination for enlistment noted a normal heart. There was no notation in either the Veteran's May 1997 report of medical history or report of medical examination that the Veteran had or previously had rheumatic fever (the Veteran did state that he had had arthritis, rheumatism or bursitis). A February 2003 chest x-ray report noted a normal radiographic examination of the chest. New York Army National Guard (NYARNG) personnel records show that the Veteran was ordered to active duty in support of Operation Iraqi Freedom and was due to report for duty on December 7, 2003. He was found to be medically disqualified on December 9, 2003. Subsequent work up found rheumatic heart disease, it was noted that the Veteran had had rheumatic fever prior to his initial period of active service. In August 2004 the Veteran was found to be physically unfit due to a seizure disorder requiring anti-epileptic medications, intermittent loss of vision (amaurosis fugax), and severe aortic regurgitation. The Veteran was discharged from NYARNG service effective in January 2005. VA treatment records and VA examination conducted in September 2005 show the Veteran has been diagnosed with systolic heart murmur because of mitral regurgitation caused by his rheumatic heart disease. During his September 2008 Travel Board Hearing, the Veteran stated that in February 2003 he was told that he did not have a heart murmur. His representative further indicated that the Veteran's pre-existing heart condition was aggravated by his service. Included in the Veteran's claims file is a letter, received in October 2008, from Dr. J.S. who noted that the Veteran had a history of rheumatic heart disease which predated his service in the army. He further stated that in his opinion, it was as likely as not that the Veteran's heart condition may have been aggravated by his military service. The Board, in March 2009, remanded the issue for a VA examination in order to obtain an opinion as to whether it was at least as likely as not that the Veteran's systolic heart murmur was due to or aggravated by his service. The Veteran was examined in May 2009, however the examiner noted that the Veteran's claims file was unavailable and that, therefore an opinion could not be rendered. The examination report notes that, in 1985, the Veteran had rheumatic heart disease and, in December 2003, the Veteran had a work up for a seizure and a heart systolic murmur was found. On physical examination, a systolic heart murmur was found. A diagnosis of valvular heart disease and mild to moderate aortic insufficiency and moderate to mild mitral regurgitation which was asymptomatic was provided. The claims file was made available to the May 2009 examiner in July 2009. In her examination report, the examiner stated that the Veteran's valvular heart disease was due to his rheumatic heart disease which began before his active service. The examiner stated that medical evaluations conducted in February 2003 and cardiology evaluations in 2005 showed that the Veteran was asymptomatic and had well compensated valvular disease. It was noted that, at present, the Veteran was asymptomatic and was well compensated from his heart condition. The examiner stated that it was thus her opinion that the Veteran's current heart disorder was not caused by or the result of military service and that it was not aggravated by military service. In September and October 2009 statements in support of his claim, the Veteran asserted his belief that his in-service physical work could have aggravated his heart problem. He noted that the doctors never detected any problems with his heart until he was admitted to the VA hospital in December 2003. He further asked why he was told not to perform physical activities if his heart condition had not been aggravated. He further stated that he had rheumatic fever in 1986 and that since that time he did not have any problems until December 2003. The Board finds that there is clear and unmistakable evidence that the Veterans heart condition existed prior to his period of active service and was not aggravated in service. Initially, as noted above, where a disease is not noted upon enlistment, unless clear and unmistakable evidence to the contrary is demonstrated, the Veteran is presumed to be in sound condition upon enlistment. Here, the Veteran's May 1997 reports of medical examination and medical history are silent as to any heart disorder but the Veteran has stated that he had rheumatic fever prior to his service. Further, Dr, J.S. and the Veteran's July 2009 VA examiner found that the Veteran's rheumatic heart disease existed prior to service. The Veteran has at times during the period on appeal suggested that his heart murmur was secondary to a seizure he suffered in December 2003. In this regard, the Board notes that in a March 2009 decision, the Board denied the Veteran service connection for a seizure disorder and that the Board cannot, therefore, grant service connection on a secondary basis as a matter of a law. The question of entitlement to service connection thus turns on whether the evidence demonstrates that the Veteran's heart condition was aggravated by his period of active service. The Board finds that it does not. Supporting the Veteran's claim for entitlement to service connection is the October 2008 letter of Dr. J.S. who noted that the Veteran had rheumatic heart disease prior to his service and that, in his opinion, the Veteran's condition may have been aggravated by his military service. The Board takes note of Dr. J.S's belief that the Veteran's heart disorder may have been aggravated in service, however this opinion, as it is speculative in nature, has limited probative value. Medical opinions expressed in speculative language ["could have caused", etc.] do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); Bostain v. West, 11 Vet. App. 124, 127-28 (1998), quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993). The Veteran himself has also posited his belief that his service exacerbated his heart condition. In this respect, the Board notes that as a lay person, the Veteran is competent to report on that which he has personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Further, a lay person can speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, the question of whether the Veteran's heart disorder was aggravated by service goes beyond a simple and immediately observable cause-and-effect relationship, and as such, he is not competent to render an opinion as to whether his heart murmur was aggravated by his service. Weighting against the Veteran's claim is the fact that, while a heart murmur was found during NYARNG service, active service treatment records are silent as to any heart symptoms whatsoever which suggests that no aggravation of a heart disorder occurred during active service. The findings of the July 2009 VA examiner also weigh against the Veteran's claim for service connection. In her examination report, the examiner found, as the Veteran was shown to be asymptomatic during and after active service, that the Veteran's current heart condition was not aggravated by his military service. The VA examiner made this determination after having examined the Veteran's claims file and his service treatment records. Provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another in doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). As noted above, the opinion of Dr. J.S. is found to be speculative. In contrast, the opinion of the VA examiner is absolute and the VA examiner supported her conclusions with findings from her review of the claims file. The Board thus affords the opinion of the July 2009 VA examiner more weight than that of Dr. J.S. The Board finds that, as the evidence has not shown an in-service incurrence of a heart disorder in active service and as the clear and unmistakable medical evidence has demonstrated that the Veteran's pre-existing heart condition was not aggravated by service, the Veteran's claim for entitlement to service connection for a systolic heart murmur must be denied. The Board has considered the doctrine of reasonable doubt, however, as there is clear and unmistakable evidence that the pre-service condition was not aggravated by service, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a systolic heart murmur due to rheumatic heart disease is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs