Citation Nr: 1314830 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 10-25 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a heart disorder. ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, that denied the Veteran's claim of entitlement to service connection for heart problems. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran's currently diagnosed coronary artery disease or other heart disorder that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A heart disorder was not incurred in or aggravated by service, nor may it be presumed to be so incurred. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. 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). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in September 2007 and September 2008 satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Board notes that the Veteran was provided multiple VA examinations in this case, and most recently with an independent medical professional's opinion in January 2013. These examinations, taken together, were thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claims for service connection in terms of info as to etiology. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection The Veteran claims that he has a heart disability that was caused by service. Specifically, he asserts that his condition may be due to operating freight and steam coal engines, and he points to his service treatment records noting a diagnosed heart murmur. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002 & Supp. 2012). 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. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, 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). Pursuant to 38 C.F.R. § 3.310(a), a "disability which is proximately due to or the result of a service-connected disease or injury shall be service connected." See Evans v. West, 12 Vet. App. 22, 29 (1998) (noting requirements for establishing service connection on a secondary basis). In order to establish a secondary service connection claim, the claimant must show: (1) the existence of a current secondary disability; (2) the existence of a service-connected disability; and (3) evidence that the service-connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310(a). Service connection for certain diseases, such as certain cardiovascular disorders, may be also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2012). The Board notes however, that in this case, there is no medical evidence of record showing a diagnosis of an actual heart disability, exclusive of the Veteran's heart murmur which has been found to be a congenital/benign condition, within one year of service, therefore, service connection on a presumptive basis for a heart condition would not be warranted. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(c) (2012), congenital or developmental disorders are not diseases or injuries for the purpose of VA disability compensation. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means 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). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). 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). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Taking into account all relevant evidence, the Board finds that service connection is not warranted for a heart condition. In this regard, the Board finds that the preponderance of the evidence of record indicates that while the Veteran does have coronary artery disease, and was diagnosed with a benign heart murmur in service, the Veteran does not have any heart disability related to service. Reviewing the relevant evidence of record, the Veteran's service treatment records show no complaints of, or treatment for, any heart condition. His February 1970 separation examination report however reflects that a grade III/IV harsh, low-pitched systolic murmur was noted. He was referred to internal medicine for further evaluation, and an April 1970 internal medicine evaluation record reflects that the Veteran did indeed have a grade III/IV systolic murmur of no physiologic significance. Post-service, the Veteran reports in support of his claim that he had a "heart attack" in 2006. In that regard, a May 2006 VA treatment record reflects that the Veteran complained of intermittent, strong heart palpitations and lightheadedness for six years, usually occurring while at rest and awakening him from sleep. An EKG revealed normal sinus rhythm and left ventricular hypertrophy. A diagnosis of palpitations was noted. October 2006 VA treatment records reflect that the Veteran returned complaining of periodic chest pain and lightheadedness and was prescribed nitroglycerin. A November 2006 stress test scan report reflects an impression of no ischemic heart disease. A December 2006 Doppler carotid ultrasound report reflects carotid artery plaque disease was revealed, with 70 percent occlusion in the right internal carotid artery and 50 percent occlusion in the left internal carotid artery. See also VA Dopplers, January 2009 and December 2011. Subsequent echocardiograms dated in March 2008 and May 2008 revealed grossly normal left ventricular function with LV ejection fractions of near 60 percent and 55 percent, respectively, trace mitral and tricuspid regurgitation, and a normal aortic valve. A July 2008 CT scan report (thorax) notes findings of coronary artery calcifications. A September 2009 chest x-ray showed a normal cardiac silhouette. Subsequent VA treatment records note the Veteran's recent May 2008 normal echocardiogram, the negative November 2006 stress test scan, and carotid artery disease. Most recently, a March 2012 VA treatment record reflects a diagnosis of palpitations. A September 2008 SSA decision reflects that the Veteran was awarded disability with a primary diagnosis of coronary artery disease. An underlying physical residual functional capacity assessment reflects that a history of coronary artery disease was noted. A November 2008 VA examination for housebound or aid and attendance status noted that the Veteran had problems with chest pain and hypertension, though he still worked at intervals. A VA medical opinion was provided in February 2010. The examiner opined that there is no etiological relationship between the development of the coronary artery disease and valvular abnormalities, and that there is no medical support that the Veteran's systolic murmur identified at the time of discharge caused or aggravated the Veteran's coronary artery disease. A VA examination was provided in March 2012 to address the Veteran's contention that his in-service exposure to engines caused his heart condition. The March 2012 VA examiner noted that the Veteran had heart palpitations and a systolic murmur. An echocardiogram revealed left ventricular hypertrophy with an ejection fraction of 55 percent. The echocardiogram also showed premature atrial contractions and mitral and tricuspid insufficiency that the examiner opined were of no clinical significance, which contractions the examiner opined in turn caused the Veteran's heart palpations. The examiner opined that the Veteran's left ventricular enlargement was more likely than not related to his hypertension, and that medical literature did not support any cause and effect relationship between heart disease and being a locomotive operator on steam or diesel engines. The examiner noted that the Veteran had risk factors for coronary artery disease, including family history, hyperlipidemia, hypertension, and male sex. A VHA opinion was obtained in January 2013. At that time, the reviewing physician, the chief of cardiology at a VA Medical Center, noted the Veteran's prior history, specifically that the Veteran had a history of heart murmur in the service, diagnosed as a physiologic murmur in 1970, while he was operating freight and coal steam engines. The Veteran was noted to have a past medical history of hypertension requiring medication, hyperlipidemia also requiring medication, and a family history of coronary artery disease. Heart murmur was evaluated with an echocardiogram in March 2008 showing normal LVEF, mild tricuspid regurgitation, trace mitral regurgitation and no aortic valve disease. On July 2008, a CT of the chest showed coronary calcification. An earlier nuclear stress test in November 2006 showed no evidence of ischemia. In 2006, an EKG done for palpitations showed LVH and PACs. The Veteran had been placed on sublingual nitroglycerin for chest palpations in 2006 without evidence of ischemia. The physician concluded that the Veteran had coronary artery disease on the basis of coronary calcification detected by CT of the chest. The physician noted that the fact that nuclear stress testing does not show ischemia means that he does not have coronary stenosis of any significance. The physician opined that it was not likely at all that coronary artery disease was related to the Veteran's heart murmur detected in service, or exposure to steam coal engines, as there is no physiologic mechanism to produce a cause and effect relationship, or any literature to support that. The heart murmur detected in service and thereafter is not supported by significant findings on echocardiogram, as there was trivial mitral regurgitation and mild mitral regurgitation and no aortic valve disease. The physician opined therefore that the murmur was most likely functional, that is, physiologic and benign. Therefore, defect versus disease did not apply because it is very common to find such mild valvular abnormalities on healthy subjects. The Veteran did not have any valve abnormalities to explain LVH on EKG as it is most likely due to uncontrolled hypertension. The examiner noted that palpitations with PAC's are common in healthy subjects and by themselves do not indicate structural heart disease. The examiner concluded that the Veteran had no heart disability at present beyond coronary artery disease, and his coronary artery disease is to be expected due to his hypertension, hyperlipidemia, make sex, and family history. Thus, the evidence unquestionably shows, as the Veteran has asserted, that the Veteran was found to have a heart murmur during examination in service. However, the medical evidence of record indicates that the Veteran's heart murmur is benign. As noted, a VA opinion was specifically sought as to the significance of that heart murmur, to include the question of whether it constituted a defect or disease, as contemplated by VA laws and regulations. In response, the VA physician explained that neither designation would be accurate, as the murmur was merely physiologic and benign, and that it was very common to find such mild valvular abnormalities in healthy subjects. The physician further explained that the actual heart disability the Veteran has, coronary artery disease, did not manifest until many years after service, and is not related to service, to include the veteran's exposure to steam coal engines in service. The Board notes that this conclusion is consistent with the previous VA medical opinions of record, which also found that the heart murmur noted in service was of no clinical significance, and that his current heart disease is unrelated to being a locomotive operator on steam or diesel engines during service. The Veteran is certainly competent to testify, as he has, to the fact that he was evaluated for a heart murmur upon separation from service, and the Board finds his testimony completely credible because, as noted above, this finding is reflected in his treatment records. However, the Board finds the question of whether the Veteran's current heart disease is related to service is one that requires medical expertise outside the scope of the Veteran's medical knowledge. And, as noted above, all the medical evidence of record indicates that the Veteran's current heart condition is not related to service. In summary, considering the medical evidence of record, and the Veteran's statements, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a heart disorder. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49 ORDER Entitlement to service connection for a heart disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs