Citation Nr: 1316144 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 12-25 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection on a direct basis for a heart disability other than hypertension, to include atrial fibrillation and pacemaker implant. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from August 1942 to October 1945. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in April 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 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). FINDING OF FACT A heart disability, to include atrial fibrillation and pacemaker implant, did not have its onset during service and is not the result of disease or injury incurred during the Veteran's military service. CONCLUSION OF LAW A heart disability, to include atrial fibrillation and pacemaker implant, was not incurred in the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claims and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claims. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established. VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided with a VCAA notification letter in March 2011, prior to the initial unfavorable AOJ decision issued in April 2011. This notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration. In addition, this letter advised him of the evidence required to substantiate disability ratings and effective dates. Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied. See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision. VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. The Veteran's service treatment records, VA medical records, and private treatment records were reviewed by both the AOJ and the Board in connection with adjudication of the claim. The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to decide the claim. In this case, the Board finds that a current VA examination to determine whether the Veteran has a heart disability that is a direct result of his military service is not necessary to decide hisclaim. Any current medical opinion linking such disability to the Veteran's military service would necessarily be based upon the unsubstantiated history provided by the Veteran decades following hisdischarge from service. In the absence of any evidence of complaints, treatment, or diagnoses referable to a heart disability in service, there is no competent basis upon which to conclude that the Veteran's current disability is related to service. In addition, no competent medical evidence suggesting such causal connection has been submitted or identified by the Veteran. Thus, the Board concludes that an examination is not necessary as there is sufficient medical evidence upon which the Board may base its decision. In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Initially, the Board notes that the Veteran's service treatment records are silent for any complaint, treatment, or diagnosis related to any heart disability. The Veteran reported to sick call with abdominal complaints in September 1943 and expressed concerns about his heart, but his heart was found to be perfectly normal. The diagnosis was acute enteritis. Service treatment records contain no reference to a disability of the heart. Post-service, VA treatment records establish that the Veteran had the onset of atrial fibrillation in April 2002 with a pacemaker implanted in 2010. However, there is no competent evidence linking the Veteran's atrial fibrillation and need for a pacemaker to his military service. The competent medical evidence does not establish such a connection. The contention of the Veteran, in fact, is that he has heart disabilities as a result of adverse events after an in-service tonsillectomy, which is service-connected. However service connection for a heart disability on a secondary basis is not before the Board at this time, having been denied in an April 2012 decision. Therefore, the claim is lacking evidence establishing a connection between the Veteran's current heart disability and military service, and the criteria for service connection are not met. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). However, as reflected by the above discussion, the preponderance of the competent evidence is against the Veteran's claim that his heart disability is a result of his military service. Therefore, his claim must be denied. ORDER Entitlement to service connection for a heart disability other than hypertension, to include atrial fibrillation and pacemaker, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs