Citation Nr: 1306804 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 11-28 794 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for residuals of appendectomy. 2. Entitlement to service connection for a heart condition. 3. Entitlement to service connection for a bladder condition. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran had active service from February 1951 to February 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's request to reopen the previously denied claims of entitlement to service connection for a burst appendix, and for heart and bladder conditions claimed as secondary to the burst appendix. The Veteran provided hearing testimony before the undersigned Veterans Law Judge at a June 2012 Board videoconference hearing. A transcript of the hearing is of record. The Board notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In August 2012, the Board reopened these claims and remanded them for additional development and consideration. All requested actions have been completed and the claims are once again before the Board. 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 Veteran has credibly testified that he underwent an appendectomy during service. 2. Records from 1960 and a 2012 VA examination revealed a healed appendectomy scar. 3. The Veteran's heart and bladder disorders were first diagnosed many years following discharge from service. 4. The most probative evidence of record indicates the Veteran's heart and bladder disorders are not related to his in-service appendicitis or appendectomy. CONCLUSION OF LAW 1. The criteria for establishing service connection for a residual scar from appendectomy have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. The criteria for establishing service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012) 3. The criteria for establishing service connection for a bladder disorder have not been met. 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claims; 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. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in December 2009 and September 2012 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claims, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letters also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in January 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's private and VA treatment records and November 2012 VA examination reports. Additionally, the prior remand instructions were substantially complied with. In this regard, outstanding VA treatment records were obtained and the Veteran was provided a VA examination in November 2012, with requested opinions provided. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Unfortunately, the Veteran's service treatment records (STRs) are unavailable. The RO has made numerous attempts to obtain these missing records from the National Personnel Records Center (NPRC), a military records repository, as well as from the Veteran personally. In January 2006, the NPRC notified the RO that the Veteran's service treatment records had been destroyed in a fire at that facility and that there were no service treatment records available. The Veteran was notified in April 2010 that his service treatment records were unavailable. In August and December 2010, the Naval History and Heritage Command (NHHC) and National Archives, respectively, also returned negative responses to the Veteran's attempt to obtain any records that may be available. It appears, therefore, that alternative sources were searched in an attempt to assist the Veteran in proving his claim. See Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist in developing facts pertaining to a claim in a case in which service treatment records are presumed destroyed includes the obligation to search for alternative medical records). Based on evidence provided by the Veteran, it is clear he has actual knowledge that his service treatment records are not available. Finally, the Veteran provided relevant testimony during the hearing before the undersigned in June 2012. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned Veterans Law Judge identified the issue on appeal and solicited the Veteran to identify evidence relevant to the claim. The Veteran described the symptoms associated with his claimed conditions. The Board finds that the hearing discussion did not reveal any evidence that might be available, but has not associated with the claims file, other than medical evidence that was since obtained on remand. Accordingly, no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease or organic diseases of the nervous system becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This 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). The determination as to whether the requirements for entitlement to service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2012). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102, 4.3 (2012). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Board has reviewed all the evidence in the Veteran's claims file, including review of his electronic virtual VA 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 appellant 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). The Board acknowledges that service treatment records (STRs) are unavailable. VA has a heightened obligation to assist the appellant in the development of his case, and to explain findings and conclusions, as well as carefully consider the benefit of the doubt rule when records in the possession of the government are presumed to have been destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the threshold for allowance of a claim is not lowered and the need for probative medical nexus evidence causally relating the current disability at issue to service is not eliminated; rather, the Board's obligation to discuss and evaluate evidence is heightened. Russo v. Brown, 9 Vet. App. 46 (1996). Service Connection for Appendectomy The Veteran asserts that he underwent an appendectomy in service in 1951, due to a burst appendix. Unfortunately, the Veteran's service treatment records were destroyed in the 1973 fire at the NPRC. However, a January 1960 physical examination in relation to employment with Transamerican Freight Lines shows that he reported a 1951 appendectomy, and the examiner confirmed the presence of an appendectomy scar at that time. At his June 2012 Board videoconference hearing, the Veteran testified that at the time he initially went onboard the U.S.S. Darby, he passed out and was immediately treated, by way of surgery, for a burst appendix. The Board finds the Veteran's assertion as to undergoing an appendectomy in 1951 in service is credible, and consistent with the information provided in the 1960 employment records. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (stating that a layperson is competent to offer testimony regarding matters capable of lay observation). During the course of the claim, the Veteran has been shown to have a current residual scar from an appendectomy. In this regard, the November 2012 VA examiner confirmed the existence of a scar and diagnosed it as a healed appendectomy scar from 1951. In summary, the Veteran has credibly testified that he underwent an appendectomy in service. A statement provided by him during an employment examination in 1960 is consistent with his current contention of undergoing an appendectomy in 1951, and revealed an appendectomy scar. Moreover, he is currently shown to have an appendectomy scar during the course of this claim. As such, the Board will resolve all doubt in the Veteran's favor and find that service connection for residual scar from an appendectomy is warranted. 38 C.F.R. § 3.102 Service Connection for Heart and Bladder Disorders The Veteran contends that his heart and bladder disorders are due to a ruptured appendix that occurred during service. Although the RO has used the term "secondary" at times in identifying his heart and bladder claims, the Board notes that the Veteran's contentions are not that his current appendectomy residuals (i.e. the scar) caused the heart and bladder disorders. Rather, he contends that an in-service event is the direct cause of his heart and bladder conditions arising many years after service. Thus, his claim is one for direct service connection-that is, the appendicitis, the claimed ruptured appendix, and negligent treatment by service medical personnel caused his subsequently diagnosed heart and bladder disorders. He does not allege, and the evidence does not otherwise suggest, that either of these disorders were present or treated during service, or for many years after discharge from service. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309(a). Initially, while the Veteran is competent to state that he underwent surgery in service, he is not competent to state whether an appendectomy was required due to an appendicitis versus an actual burst appendix. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, medical expertise and testing is required to determine whether an appendicitis exists and whether such internal organ has actually ruptured. Moreover, in deciding these issues, the Board has considered the Veteran's contentions and testimony that his heart and bladder disorders were caused by his appendicitis and/or appendectomy in service. However, the Veteran is not shown to possess any specialized training to render him competent to provide an opinion as to the etiology of his heart and bladder disorders. Such matters are not capable of lay observation, and require medical testing and expertise to determine. Accordingly, his opinion as to the relationship between his heart and bladder disorders and his in-service appendicitis and appendectomy, is not persuasive evidence as to the etiology of those disorders. Id. In reaching the conclusions below, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. Heart Disorder A physical examination from Transamerican Freight Lines, dated in January 1960, notes the Veteran's appendectomy scar, as indicated above. However, there are no indications of any other residuals as a result of this surgery, including any heart or bladder problems. In March 2002, the Veteran underwent heart surgery, performed by Dr. Knight, with a preoperative diagnosis of constrictive pericarditis with right heart failure. The post operative diagnosis was heavily calcified pericardium, causing constrictive pericarditis. A letter from Dr. Knight, dated in April 2002, described the Veteran's procedure and his recovery following the surgery. There was no etiological opinion in this statement. However, in March 2011, the Dr. Knight submitted a second letter that specially stated the cause of his heart surgery was most likely from a viral or bacterial pericarditis that resulted in calcification of the pericardium that caused constriction of the heart. Dr. Knight specifically stated that it is not related to the Veteran's military service. In November 2012, the Veteran underwent a VA examination. Following an objective physical examination and review of the Veteran's claims file, the examiner stated that it less likely than not the Veteran's heart condition is caused by or aggravated by his appendectomy in service. The examiner explained that there is no logical nexus linking the two conditions because the Veteran admitted he did well until 2002, and Dr. Knight's March 2011 note clearly indicates that the problem is not related to his military service. The only medical opinions to address the question of whether the Veteran's current heart disorder is related to the appendicitis and appendectomy in service are against such a conclusion. Both Dr. Knight and the VA examiner concluded that the Veteran's heart disorder is not related to his military service. There is no medical opinion to the contrary. While the Veteran disagrees with that conclusion, his lay opinion on this matter is significantly less probative than those from the medical professionals. In summary, the Veteran does not contend and the evidence does not show that he suffered from a heart disorder during service or for many years after discharge from service. Moreover, the most probative evidence indicates the Veteran's current heart disorder is not related to the appendicitis or appendectomy occurring during service. Accordingly, the preponderance of the evidence is against the claim, and service connection for a heart disorder is denied. Bladder Disorder In June 2005, a VA treatment record noted the Veteran has a neurogenic bladder of unknown cause and began self-catheterizations in 2000. An August 2009 VA treatment record notes the Veteran's continued complaints of and treatment for his neurogenic bladder, including recurrent infections. The Veteran underwent a VA examination in November 2012. The VA examiner provided an objective physical examination and reviewed the Veteran's claims file. The examiner determined the Veteran did not develop bladder dysfunction until 1999. The examiner stated there was no logical nexus linking these two conditions, even if the Veteran's appendix burst in service, as he is alleging. As for whether the Veteran's appendix burst, the examiner stated that, because the Veteran's STRs are missing, there is no way to tell. However, as there are no documented post-operative complications, it was apparently an uneventful recovery. The examiner ultimately concluded that the Veteran's bladder disorder is less likely than not related to the Veteran's in-service appendectomy. The only medical opinion to address the question of whether the Veteran's current bladder disorder is related to the appendicitis and appendectomy in service is that provided by the November 2012 VA examiner, which is against the claim. While the Veteran believes his disorder is related to a burst appendix in service, the Board finds the opinion of the VA examiner to be significantly more probative than the Veteran's lay assertion. In summary, the Veteran does not contend and the evidence does not show that he suffered from a bladder disorder during service or for many years after discharge from service. Moreover, the most probative evidence indicates the Veteran's current bladder disorder is not related to the appendicitis or appendectomy occurring during service. Accordingly, the preponderance of the evidence is against the claim, and service connection for a heart disorder is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, 274 F.3d at 1364; Gilbert, 1 Vet. App. at 55-56. ORDER Entitlement to service connection for a scar as residual of appendectomy is granted. Entitlement to service connection for a heart disorder is denied. Entitlement to service connection for a bladder disorder is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs