Citation Nr: 1307897 Decision Date: 03/08/13 Archive Date: 03/11/13 DOCKET NO. 10-19 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a cardiovascular disorder, to include heart murmur, cardiomyopathy, arterial fibrillation status post pacemaker, ventricular tachycardia, and renal cell carcinoma, claimed as due to in-service radiation exposure. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran served on active duty from May 1960 to May 1964. This matter comes before the Board of Veterans' Appeals (Board) from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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). The Veteran's claim on appeal was initially characterized as a claim of service connection for a heart condition, to include heart murmur, non-ischemic dilated cardiomyopathy, and arterial fibrillation status post pacemaker. However, while on appeal, the United States Court of Appeals for Veterans Claims (Court) addressed a case involving the scope of filed claims. In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claim is not limited to the diagnosis identified by the Veteran. More precisely, a claim is for a disability that may reasonably be encompassed by several factors including: (1) the claimant's description of the claim; (2) the symptoms the claimant describes; and (3) the information the claimant submits or that [VA] obtains in support of the claim. A review of the claims file shows that the Veteran has also been diagnosed as having renal cell carcinoma. The Board therefore finds that the Veteran's claim is not limited solely to the above-listed heart disorders. Instead, the claim is properly characterized broadly as a claim of service connection for a cardiovascular disorder, to include heart murmur, cardiomyopathy, arterial fibrillation status post pacemaker, ventricular tachycardia, and renal cell carcinoma, claimed as due to in-service radiation exposure. The Veteran and his spouse provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2011. In April 2011, the Board remanded the appeal claim for further development to include requesting additional information from the Veteran regarding his purported in-service radiation exposure, and to develop this claim pursuant to the provisions of 38 C.F.R. § 3.311. The Board finds that these remand directives have been substantially accomplished. Accordingly, a new remand is not required in order to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board notes that in April 2011 it also denied the Veteran's claims of service connection for hearing loss and tinnitus. These issues are thus no longer on appeal. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran was exposed to ionizing radiation in service. 2. The preponderance of the competent medical and other evidence of record is against a finding that the Veteran has a current cardiovascular disorder that developed as a result of his active service. CONCLUSION OF LAW The criteria for a grant of service connection for cardiovascular disorder, to include heart murmur, cardiomyopathy, arterial fibrillation status post pacemaker, ventricular tachycardia, and renal cell carcinoma, are not met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.311 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements of the VCAA require VA to notify the Veteran 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, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). VCAA notice 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 v. Nicholson, 19 Vet. App. 473 (2006). VA must provide a claimant VCAA notice before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Dingess; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was sent pre-adjudication notice regarding his current cardiovascular disorder claim via a September 2009 letter, which is clearly prior to the November 2009 rating decision that initially adjudicated this claim. In pertinent part, this informed the Veteran of what was necessary to substantiate his current appellate claim, what information and evidence he must submit, what information and evidence will be obtained by VA, and the information used by VA to determine disability rating(s) and effective date(s) should service connection be established. Therefore, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims and the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records. Further, the Veteran has had the opportunity to present evidence and argument in support of his claim, to include at the March 2011 Board hearing. Nothing indicates he has identified the existence of any relevant evidence that has not been obtained or requested. Moreover, for the reasons detailed below, the Board finds that the preponderance of the evidence is against a finding that the Veteran was exposed to ionizing radiation in service. As such, no further development on this purported radiation exposure, to include a dose estimate and other procedures under 38 C.F.R. § 3.311, is warranted. With respect to the aforementioned March 2011 hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or VLJ who conducts 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 accurately noted the appellate claims, and asked questions to clarify the Veteran's contentions. Moreover, the Veteran, through his testimony and other statement of record, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim(s). Finally, 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 March 2011 hearing. As such, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. 3.103(c)(2) have been satisfied. The Board also notes that the Veteran was accorded a VA medical examination in April 2010 which included an opinion that addressed the etiology of the current cardiovascular disorder. As this opinion was based upon both a medical evaluation of the Veteran, and an accurate understanding of his medical history based upon review of his VA claims folder, the Board finds it is supported by an adequate foundation. No competent medical evidence is of record which specifically refutes the findings of the April 2010 VA examination, and the Veteran has not otherwise identified any prejudice therein. Although this examination did not specifically address the Veteran's contention of in-service radiation exposure, as already noted the Board has determined that the probative evidence is against such exposure. Therefore, no competent medical opinion is required to address a situation the Board has determined is not supported by the record. Accordingly, the Board finds that this examination is adequate for resolution of this case. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (The Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (Noting that 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). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis 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 Veteran seeks entitlement to service connection for a cardiovascular disorder based on exposure to ionizing radiation. Specifically, he reports that he was stationed at an Air Force base in Northern California in early 1961 while attached to the 456th Airborne Missile Maintenance Squadron. He states that a B-52 Stratofortress crashed in the vicinity and that he was transported to the crash site and tasked with retrieving materials from the wreckage. He reports that there was mention of a "yellow material" on board the B-52 that he believes was a nuclear weapon, resulting in in-service exposure to ionizing radiation. Service connection for a disorder which is claimed to be attributable to radiation exposure during service can be accomplished in three different ways. See Ramey v. Brown, 9 Vet. App. 40, 44 (1996), aff'd, 120 F.3d. 1239 (Fed. Cir. 1997). First, there are specific diseases that may be presumptively service connected if manifest in a radiation-exposed veteran. 38 U.S.C.A. § 1112(c); 38 C.F.R. § 3.309(d). A "radiation-exposed" veteran is one who participated in a radiation-risk activity. A "radiation-risk activity" includes the onsite participation in a test involving the atmospheric detonation of a nuclear device, occupation of Hiroshima or Nagasaki during World War II, or presence at certain specified sites. 38 C.F.R. § 3.309(d)(3). In applying this statutory presumption, there is no requirement for documenting the level of radiation exposure. Second, other "radiogenic" diseases, such as any form of cancer listed under 38 C.F.R. § 3.311(b)(2), found five years or more after service in an ionizing radiation-exposed Veteran may also be service-connected if the VA Under Secretary for Benefits determines that they are related to ionizing radiation exposure while in service, or if they are otherwise linked medically to ionizing radiation exposure while in service. Other claimed diseases may be considered radiogenic if the claimant has cited or submitted competent scientific or medical evidence that supports that finding. 38 C.F.R. § 3.311(b)(4). When it has been determined that: (1) a veteran has been exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons; (2) the veteran subsequently develops a specified radiogenic disease; and (3) the disease first becomes manifest five years or more after exposure, the claim will be referred to the Under Secretary for Benefits for further consideration in accordance with 38 C.F.R. § 3.311(c). When such a claim is forwarded for review, the Under Secretary for Benefits shall consider the claim with reference to 38 C.F.R. § 3.311(e) and may request an advisory medical opinion from the Under Secretary of Health. 38 C.F.R. §§ 3.311(b), (c)(1). The medical adviser must determine whether sound scientific and medical evidence supports a conclusion that it is "at least as likely as not" that the disease resulted from in-service radiation exposure or whether there is "no reasonable possibility" that the disease resulted from in-service radiation exposure. 38 C.F.R. § 3.311(c)(1). Pursuant to 38 C.F.R. § 3.31 , "radiogenic disease" is defined as a disease that may be induced by ionizing radiation, and specifically includes the following: all forms of leukemia, except chronic lymphocytic leukemia; thyroid cancer, breast cancer, lung cancer, bone cancer, liver cancer, skin cancer, esophageal cancer, stomach cancer, colon cancer, pancreatic cancer, kidney cancer, urinary bladder cancer, salivary gland cancer, multiple myeloma, posterior subcapsular cataracts, non-malignant thyroid nodular disease, ovarian cancer, parathyroid adenoma, tumors of the brain and central nervous system, cancer of the rectum, lymphomas other than Hodgkin's disease, prostate cancer, and any other cancer. 38 C.F.R. § 3.311(b)(2)(i) -(xxiv). Section 3.311(b)(5) requires that bone cancer become manifest within 30 years after exposure, posterior subcapsular cataracts become manifest within 6 months or more after exposure, leukemia become manifest at any time after exposure, and that other diseases specified in § 3.311(b)(2) become manifest 5 years or more after exposure. Third, direct service connection can be established by showing that the disease or malady was incurred during or aggravated by service, a task which includes the burden of tracing causation to a condition or event during service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Service connection claims based on in-service exposure to radiation may be addressed under 38 C.F.R. § 3.309(d) or § 3.311. Here, the Veteran's cardiovascular disorders have been diagnosed as idiopathic, non-ischemic cardiomyopathy, ventricular tachycardia, arterial fibrillation status post pacemaker, and renal cell carcinoma. These disorders are not listed among the "Diseases specific to radiation-exposed veterans" of 38 C.F.R. § 3.309(d); however, renal cell carcinoma, diagnosed more than 5 years after the Veteran's separation from service, is among the "radiogenic diseases" of 38 C.F.R. § 3.311. In addition, the Veteran may still be granted service connection under 38 C.F.R. § 3.303(d) if it is established that the disease diagnosed after discharge is the result of exposure to ionizing radiation during active service. In this case, the Board must address whether the record supports a finding that the Veteran was exposed to radiation while on active duty. As an initial matter, the Board notes that a thorough review of the record, to include the Veteran's service treatment and personnel records, does not reflect he participated in a radiation risk activity as recognized by 38 C.F.R. § 3.309(d)(3). Therefore, these provisions are not applicable to the instant case. With respect to the Veteran's contentions regarding the B-52 plane crash in 1961, the Board notes that he is competent to describe such a crash. Further, a report is of record from the Armed Forces Radiobiology Research Institute (AFRRI) confirms that such a crash did occur in California in 1961. Moreover, the Veteran's service personnel records confirm he was stationed at Beale Air Force Base in California at the time this crash occurred. Thus, the evidence of record is consistent with his being present at the time of such a crash. The Board also acknowledges that the AFRRI report stated that two nuclear weapons were on board the B-52 that crashed in 1961. However, the report also states that while these weapons were torn from the aircraft on ground impact, the high explosive did not detonate. Moreover, the report states that safety devices worked as designed to prevent nuclear contamination. In short, the AFRRI report reflects that no radiation exposure resulted from the B-52 crash. The Board further notes that the Veteran's service personnel records include a DD Form 1141 Report of Exposure to Ionizing Radiation, which reflects the Veteran had no such exposure while on active duty. In view of the foregoing, the Board finds that the probative evidence of record is against a finding that the Veteran was exposed to ionizing radiation in service. Therefore, no further development or consideration of this service connection claim on the basis of ionizing radiation exposure is warranted in this case. The Board also finds that the preponderance of the competent medical and other evidence of record is otherwise against a finding that the Veteran has a current cardiovascular disorder that developed as a result of his active service. The Board acknowledges that the Veteran's heart was clinically evaluated as normal on his April 1960 enlistment examination, but was found to be abnormal on his April 1964 separation examination which was attributed to a Grade 2/6 systolic murmur heard loudest at the base of the heart. However, thrust, size, rhythm, and sounds were normal. Records regarding evaluations conducted in response to this murmur noted that he was asymptomatic with respect to cardiovascular system. An EKG was conducted which was normal. In short, while there was abnormal findings in the term of a heart murmur on the April 1964 separation examination, the Veteran was not found to have a chronic cardiovascular disorder at that time, or for years after his separation from service. The Court has indicated that the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (Affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without 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 a disease was incurred in service which resulted in any chronic or persistent disability.). The Board also notes that the cardiovascular system, to include the heart, is an internal organ, not subject to lay observation. Therefore, competent medical evidence is required to diagnose a chronic cardiovascular disorder and determine the etiology thereof. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). The only competent medical evidence to address the etiology of the Veteran's cardiovascular disorder is the April 2010 VA examination, which noted, in part, that the description of the murmur in 1964 was a very generic description of a benign murmur. The examiner indicated that the Veteran did not have any significant valvular lesions as he had never had further progression of this murmur in 36 years. In fact, the examiner stated that he was unable to appreciate any murmur on the examination. The April 2010 VA examiner found that the Veteran's idiopathic cardiomyopathy was not caused by or a result of the systolic murmur documented in 1964, nor was his atrial fibrillation and need for implantable defibrillator. In support of this opinion, the examiner states that there was no objective evidence to support the fact that the Veteran has a significant valvular lesion or any sort that would have led to his cardiomyopathy while there were valvular lesions that over time could lead to a dilated non-ischemic cardiomyopathy (i.e., severe mitral regurgitation or aortic insufficiency), and that the Veteran did not have either of these conditions ever documented. Further, the murmur from 1964 had not been documented in any notes that the examiner had available for review and the examiner did not appreciate it on examination. Regarding the atrial fibrillation and need for implantable defibrillator, the examiner stated that this was due to the fact that he had ventricular tachycardia, which was a potentially lethal arrhythmia. The examiner states that this was not related to the murmur in 1964. Based on information, the examiner reported that this was likely secondary to the very low ejection fraction; no evidence of coronary artery disease or ischemia. The examiner also reiterated that there was no mention of valvular lesions in any cardiac notes. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). In this case, the April 2010 VA examiner was aware of the Veteran's relevant medical history based upon review of the VA claims folder, and summarized relevant findings regarding his cardiovascular system as part of the examination report to include the murmur noted at the time of separation from service. The examiner's opinion did not contain equivocal or speculative language, and supported the conclusion with references to the documented medical evidence. Consequently, the Board finds that this opinion is adequate for resolution of this case. As the opinion expressed is against any current cardiovascular disorder being etiologically linked to service, to include the documented murmur at separation from service, the Board finds that the preponderance of the competent medical evidence is unfavorable and the claim must be denied. ORDER Service connection for a cardiovascular disorder, to include heart murmur, cardiomyopathy, arterial fibrillation status post pacemaker, ventricular tachycardia, and renal cell carcinoma, claimed as due to in-service radiation exposure, is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs