Citation Nr: 1314664 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 09-46 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disability, to include a tricuspid valve defect. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from November 1964 to August 1968, and from July 1969 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In March 2011, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims folder. In June 2011, the Board remanded the case for additional development, to include obtaining current VA treatment records and scheduling a VA examination. The requested records have been obtained and associated with the claims file. Furthermore, as discussed in detail below, VA obtained a heart examination in August 2011 and a Veterans Health Administration (VHA) opinion in January 2013. The Board acknowledges that the VLJ who conducted the March 2011 hearing and issued the June 2011 remand no longer works at the Board. By a September 2012 letter, the Board advised the Veteran that he had the right to another hearing by a current VLJ who would decide his appeal and was asked whether he desired to have a new Board hearing. See 38 C.F.R. § 20.707. In a response received the following month, the Veteran indicated that he did not desire an additional hearing. Thus, the Board will proceed with adjudication of his appeal. FINDING OF FACT A heart disability did not begin in service or within a year of separation from service and is not attributable to the Veteran's military service. CONCLUSION OF LAW The Veteran does not have a heart disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a pre-decisional letter dated in December 2007 complied with VA's duty to notify the Veteran with regards to the service connection issue addressed herein. Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. In addition, a December 2008 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the totality of the required notice was not provided until after the Veteran's claim was initially adjudicated, the claim was subsequently re-adjudicated in an August 2011 supplemental statement of the case, thereby correcting any defect in the timing of the notice. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). No further corrective action is necessary. Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claim. VA has obtained service treatment records (STRs), private treatment records, VA treatment records, and records from the Social Security Administration (SSA). The Veteran underwent VA examinations in January 2008 and August 2011. VA also obtained a VHA opinion in January 2013. In that regard, the Board notes that 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 August 2011 examination and January 2013 opinion have provided sufficient information upon which to base a determination as those records fully addressed the Veteran's symptoms and the medical evidence of record in assessing the Veteran's status. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the claim on appeal has been met. See 38 C.F.R. § 3.159(c)(4). There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The duties to notify and assist have been met. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection can be granted for certain diseases, including cardiovascular-renal disease (including hypertension) and endocarditis (all forms of valvular heart disease), if manifest to a compensable degree within one year of separation from active service. Such disease shall be presumed to have been incurred in service even though there is no evidence of disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that service connection should be established for a heart disability, to include a tricuspid valve defect. An October 1964 enlistment examination report shows that there was a normal clinical evaluation of the Veteran's heart. On the accompanying medical history report, the Veteran checked the "yes" box for "pain or pressure in chest." The clinician noted that the Veteran was referring to "fleeting chest pain" and that this condition was not considered disabling. STRs from the Veteran's first period of active duty service show that he was hospitalized in February 1966 after complaining of chest pain. A cardiac evaluation revealed no evidence of myocardial or pericardial disease. The conclusion was that the chest pains were likely musculoskeletal or nervous in origin and were not related to any myocardial disease. It was noted that the abnormal electrocardiogram study might represent either old pericarditis or an indication of early idiopathic myocardial hypertrophy. The August 1968 separation examination and the July 1969 reenlistment examination contain a normal clinical evaluation of the Veteran's heart. On the medical history report accompanying the 1969 examination, the Veteran again checked the "yes" box for "pain or pressure in chest." The clinician indicated that the Veteran had had "chest pain with exertion." STRs from the Veteran's second period of active duty service show that he was hospitalized in October 1969 with chest pain lasting for several hours. The impression was that there was no gross evidence for organicity. Costochondritis was questioned, but it was remarked that it would be helpful to have the records from the February 1966 hospitalization. A February 1970 discharge examination contains a normal clinical evaluation of the Veteran's heart. The pertinent post-service evidence includes an August 2002 VA evaluation (32 years after service), which revealed an abnormal electrocardiogram. The assessment was "chest pain probably suggestive of angina." It was noted that there were no unstable symptoms and no high risk clinical predictors. A stress test was recommended, but the Veteran failed to report for this procedure. An October 2004 VA treatment record shows that the Veteran reported a history of "abnormal T valve." The initial assessment was coronary artery disease. A cardiac evaluation was recommended. In November 2007, the Veteran's treating physician at VA, Dr. Karp, noted that treadmill testing in November 2004 was negative for ischemia. Notation was also made of an echocardiogram done outside VA in October 2007 that showed mild left atrial enlargement, mild tricuspid regurgitation, and trivial mitral regurgitation with a left ventricular ejection fraction of 68 percent. The Veteran stated that his heart problems began while on active duty and had been symptomatic since that time. Following evaluation, a pertinent impression was made of tricuspid valve disease with tricuspid regurgitation documented on recent echocardiogram. The doctor stated "the tricuspid valve disease is at least as likely as not to be related to his military service and needs to be considered for a service-connected disability." (The Board notes that Dr. Karp is an internist.) Three weeks later, in December 2007, the Veteran was seen by a VA cardiologist. He reported that he had been diagnosed with a tricuspid valve problem during service. This doctor reviewed the Veteran's STRs and October 2007 echocardiogram. He noted that the Veteran had several risk factors for coronary artery disease, including obesity, hypertension, hyperlipidemia, low HDL, high triglycerides, and atypical chest pain. Clinically, there was no murmur to suggest tricuspid valve insufficiency. There was no history of rheumatic fever and no history of using weight loss medications. The cardiologist stated that it was "unlikely that the [tricuspid regurgitation] even if present [was] responsible for the chest pain." Reference was made to the fact that the Veteran had significant risk factors for coronary artery disease and needed to undergo myocardial scanning. The cardiologist noted that the Veteran was very angry "for not giving him the disability status." He tried to explain to the Veteran that while STRs referred to atypical chest pain, there was no mention that a valvular problem was the cause of it. The Veteran became very argumentative, at which point the cardiologist told him that "I could only give my opinion and not question the judgment of other physicians who had dealt with him in the past." Notably, the examining cardiologist discussed the entire evaluation with Dr. Karp. A January 2008 VA examination report shows that the Veteran reported a number of issues and symptoms that he described as "heart trouble" dating back to his military service. The examiner noted that myoview testing was pending the following day to further assess the Veteran's cardiac status. Following examination, the Veteran was given a diagnosis of "history for recurrent anterior chest pain associated with longstanding ST-T abnormalities on electrocardiogram, without other evidence for intrinsic cardiac disease." Reference was again made to the myoview examination scheduled the following day to further assess the Veteran's cardiovascular status. The examiner reviewed the claims file and available medical records and noted that the Veteran had apparently experienced no documented cardiac events and had no prior evidence for myocardial infarction, congestive heart failure or other cardiovascular disorder. However, the examiner noted that it could be stated unequivocally that the Veteran showed electrocardiographic abnormalities while on active duty. In June 2009, a VA physician reviewed the October 2007 echocardiogram report and diagnosed tricuspid regurgitation. August 2009 VA treatment records note that echocardiogram studies done the previous month showed no significant abnormalities. Pumping capacity was described as excellent. Mild thickening of the heart muscle was noted, resulting in a slight decrease in muscle relaxation during the filling phase of the pumping cycle, but no significant valve narrowing or leakage was indicated. At his March 2011 hearing, the Veteran testified that during service he played basketball for the Navy, but that he was instructed to stop playing after being hospitalized for chest pain because he was considered a "risk." Hearing Transcript at 4. He further testified that since discharge from service he has been to the hospital for chest pain about "6 or 7" times. Hearing Transcript at 8. (The Veteran has not provided information on any of these providers despite being requested to do so by VA.) A VA heart examination was conducted in August 2011. The examiner reviewed the claims file, to include the STRs. He noted that the January 2008 myoview examination revealed normal myocardial perfusion, normal left ventricular wall motion, and post-stress left ventricular ejection fraction of 77 percent. The diagnosis was tricuspid insufficiency. The examiner found no evidence of ischemic heart disease or coronary artery disease. He opined that the diagnosed tricuspid valve disability was less likely as not (less than 50/50) caused by or a result of the Veteran's active service. He explained that no echocardiogram had been conducted during service, and that tricuspid insufficiency does not cause chest pain or result in T wave changes. VA obtained a VHA opinion in January 2013 from a cardiologist who had full access to the Veteran's claims file. He reviewed the subjective data (the Veteran's repeated episodes of chest discomfort), the STRs, and the relevant treatment records and cardiac studies. He noted that the Veteran had a history of hypertension and hyperlipidemia. The doctor opined that the July 2011 ECG was compatible with a middle-aged man with a history of hypertension. He noted that fluctuating T wave changes can be normal, and concluded that if the Veteran "truly had ischemic heart disease or any other form of significant heart disease, the natural history would have been progression." He acknowledged that the stress test was limited by the lack of a baseline or resting scan and failure to achieve a heart rate in the high 150s or 160s, but noted that it was "normal to the level it was taken, and in no way suggests the presence of coronary ischemia." The doctor also opined that the mild mitral annular calcification was likely an age-related benign finding. He explained that mild tricuspid, mitral, or pulmonic valve insufficiency is a very common finding and, without abnormal valvular anatomy, is benign. Specifically, he noted that the Veteran had normal right ventricular systolic pressure, and that such a finding indicates no abnormal volume load on the right ventricle that would be present were the tricuspid insufficiency be significant. Finally, the cardiologist summarized his report as follows: [A]ll of the findings in this individual are commonly found in men of his age, are benign to the level the diagnostic tests have been done, and do not indicate the presence of significant organic heart disease, and would be present irrespective if [the Veteran] was in the military or not. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board finds that the opinions rendered by the VA physicians in August 2011 and January 2013, indicating that the Veteran did not have an ischemic disease process and that his mitral valve calcification and tricuspid valve defect are unrelated to service, to be the most probative and persuasive medical opinion evidence of record. The August 2011 VA examiner's findings were based on a thorough and detailed examination of the Veteran and the claims folder and supported by an adequate and persuasive rationale. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the physician's access to the claims folder and the veteran's history, and the thoroughness and detail of the opinion). Similarly, the January 2013 VA cardiologist based his findings on a thorough review of the Veteran's pertinent medical history. Additionally, the Board considers it significant that the August 2011 and January 2013 VA examiners' opinions constitute the most recent medical evidence of record and were requested specifically to address the issue on appeal. Moreover, the VA opinions are consistent with the other competent clinical evidence, which indicates that the Veteran's mitral and tricuspid deficiencies are benign and likely related to his non-service connected hypertension. In contrast, the Board finds that the November 2007 VA internist's opinion is not supported by a rationale and, thus, is of limited probative value. Sklar v. Brown, 5 Vet. App. 140 (1993). Despite the Veteran's assertion to the contrary (see Hearing Transcript at 5), it appears that the internist did not have access to the Veteran's STRs. See 38 C.F.R. § 4.1 (2012). Rather, the STRs were reviewed by a VA cardiologist the following month. The record makes it clear that the cardiologist did not share Dr. Karp's opinion. The Board acknowledges that claims folder review is not a requirement for medical opinions, and that a medical opinion may not be discounted solely because the opining clinician did not conduct such a review. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). However, the VA internist did not indicate any familiarity with the Veteran's pertinent in-service clinical history. On the contrary, he appears to have based his assessment entirely on the Veteran's unsubstantiated statements at the time of the examination. A medical opinion premised upon an unsubstantiated account of a claimant is of negligible probative value. Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Accordingly, the Board considers the November 2007 assessment to be of lesser probative value than the negative opinions by the August 2011 VA examiner and January 2013 VA cardiologist. The Board acknowledges that a VA nurse provided a diagnosis of coronary artery disease in October 2004. However, that diagnosis appears to have been tentative in that additional testing was ordered, to include a chest X-ray, EKG, cardiac consult, and treadmill consult. Significantly, this isolated diagnosis has not been endorsed by any medical professional since. Although the December 2007 VA cardiologist indicated that it was "more likely" the Veteran had CAD, he indicated that a myocardial scan was necessary. The Board notes that a subsequent myocardial scan was negative. Moreover, the Veteran did not seek treatment for any problems with his heart until 2002, over 30 years after his separation from service. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service, is probative evidence against the claim. See Maxson v. Gober, 230 F.3d 1330, 1333(Fed. Cir. 2000). Thus, service connection for a heart disability, to include a triscupid valve defect, is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307, 3.309. The Board notes that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. §§ 3.303(a), 3.159(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). However, symptoms of chest discomfort, shortness of breath, and chest pain require specialized training for a determination as to diagnosis and causation, and are therefore not susceptible of lay opinions on etiology. The Veteran's statements with regard to his subjective complaints and his history are competent and credible, but they do not constitute competent medical evidence for the purpose of establishing a diagnosis and nexus to service. Although service connection may be presumed for individuals who served in Vietnam and later develop ischemic heart disease, see 38 C.F.R. §§ 3.307, 3.309(e), there is, as noted above, no diagnosis of ischemic heart disease. Consequently, further analysis of this presumption is not necessary. (Despite a provisional assessment made of coronary artery disease, later diagnostic scans and testing did not show it.) Under these circumstances, the Board concludes that the claim for service connection for a heart disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a heart disability, to include a tricuspid valve defect, is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs