Citation Nr: 1316198 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 10-16 961 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for mitral valve prolapse. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran , who is the appellant in this case, had active duty service from September 1979 to August 1983, and from October 1983 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board has not only reviewed the Veteran's physical claims file, but also the file on Virtual VA, to ensure a total review of the available evidence. This case was previously before the Board in December 2011, wherein it was remanded in order for the RO to consider a VA consultation report submitted on behalf of the Veteran and to obtain a VA examination. The case was again before the Board in February 2013, wherein it was remanded for the RO to consider additional evidence submitted by the Veteran. The case was returned to the Board for appellate consideration. The Board finds that there has been substantial compliance with the directives of the December 2011 and February 2013 remands, as the RO considered the additional evidence submitted by the Veteran (supplemental statements of the case were issued in July 2012 and March 2013) and the Veteran was afforded a VA examination in March 2012. As such, an additional remand to comply with such directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran did not sustain a disease or injury of mitral valve prolapse during service. 3. The Veteran does not have a current disability of mitral valve prolapse. CONCLUSION OF LAW The criteria for service connection for mitral valve prolapse are not met. 38 U.S.C.A. §§ 1131, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued a notice letter, dated in May 2008, to the Veteran. This letter explained the evidence necessary to substantiate the Veteran's claim for service connection, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case, the Veteran's complete service treatment records from his entire period of active duty service are unavailable. Correspondence dated in October 2008 shows the Portsmouth Naval Medical Center indicated the records are unavailable. In March 2010, the Veteran was informed that his complete service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran did not indicate that he had any additional records to submit. In appeals where a veteran's service treatment records are unavailable, there is a heightened obligation to assist in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005). In February 2009, the Veteran was informed the service treatment records were not available and what efforts were made to try to obtain the records, including requesting any records in the Veteran's possession. The Veteran subsequently indicated he had no records to submit. Nonetheless, the claims file contains reports of private and VA post-service treatment, the Veteran's own statements in support of his claim, and the history, findings, diagnoses, and opinions from a VA examination. The Veteran was examined by VA in connection with his claimed mitral valve prolapsed in March 2012. The Board has reviewed the examination report, and finds that it is adequate for the purpose of deciding the issue on appeal. The March 2012 VA examination report contains all the findings needed to decide the claim for service connection, including history of injury and symptoms, clinical examination findings, and diagnoses (or finding of no current disability). With regard to the claim for service connection for mitral valve prolapse, there is competent medical evidence showing no current disability of the heart, so no nexus opinion is necessary. The assessment was based on a thorough review of history, current complaints, and various specific clinical findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). In addition, the Veteran has not alleged that the examination is inadequate to decide the current claim, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). In this case, the Board has thoroughly reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted. 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). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service connection may be granted for disability or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Veteran has not been diagnosed with a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply to that claimed disability. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Mitral valve prolapse involves a benign displacement of the mitral valve; it is not a cardiovascular-renal disease. See Dorland's Illustrated Medical Dictionary, 1825 (30th ed. 2003). Lay assertions may serve 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. See 38 U.S.C.A. § 1153(a) (West 2002); 38 C.F.R. § 3.303(a); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for Mitral Valve Prolapse The Veteran has claimed service connection for mitral valve prolapse. In multiple statements, the Veteran contends that he was diagnosed with mitral valve prolapse while in service and, thus, should be service connected. In this Veteran's case, the evidence does not show, nor does the Veteran allege, that he engaged in combat with the enemy during active service. For this reason, 38 U.S.C.A. § 1154(b) is not applicable in this case. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a disease or injury of mitral valve prolapse during service, and did not have symptoms of mitral valve prolapse in service. In this case, complete service treatment records are not available. Nevertheless, the Board acknowledges that service treatment records show that the Veteran reported a history of mitral valve prolapse at a December 1989 Reserve enlistment examination; he also reported a history of mitral valve prolapse at June 1990 and January 1994 Reserve examinations. The Veteran did not report a date of onset of the reported mitral valve prolapse, whether during a service period or non-service period. Regardless of history, a June 1990 clinical evaluation was normal and a July 1990 ECG was also normal, reflecting no mitral valve prolapse at that time. See 38 C.F.R. § 3.303(a). The weight of the evidence demonstrates that after service the Veteran did not experience symptoms of mitral valve prolapse, which further indicates no disability during service or evidence of current disability when examined after service. The Veteran is competent to report certain symptoms related his claimed disability, as well as a diagnosis; however, the Board finds that his assertions of current mitral valve prolapse are not credible. Although the Veteran has continued to assert that he has mitral valve prolapse, multiple evaluations and examinations since service separation have shown that he does not currently have mitral valve prolapse. A June 2005 Reserve EKG report indicates that testing showed normal cardiac function, without evidence of cardiac disease or ischemia. Additionally, private treatment records from Scott & White, dated 2005 through 2008, indicate that the Veteran repeatedly denied chest pain, shortness of breath, and dyspnea on exertion. A June 2005 stress test did not show ischemia, valve dysfunction, or wall motion abnormalities; there was normal ejection fraction and bicuspid aortic valve. An April 2010 VA cardiology consultation report indicates that the Veteran complained of an irregular heartbeat; there was 4-beat ventricular tachycardia, but no significant cardiac arrhythmia was noted, there was normal wall motion, and no significant mitral valve prolapse. The Board further finds that the weight of the evidence demonstrates that the Veteran does not currently have mitral valve prolapse. Significantly, the Board assigns probative value to the March 2012 VA heart examiner's opinion that the Veteran does not have, and never had, a heart disorder. According to the VA examiner, the Veteran had a systolic murmur in the mitral area, but echocardiograms were normal; the Veteran does not have myocardial infarction, arrhythmia, congestive heart failure, or a heart valve condition. Upon clinical evaluation in March 2012, the Veteran had normal heart rhythm and sounds, without jugular-venous distension, edema, or abnormal peripheral pulses. The VA examiner further diagnosed that the Veteran did not have mitral valve prolapse; according to the VA examiner, a heart murmur is not mitral valve prolapse. For these reasons, the Board finds that the weight of the evidence demonstrates no current disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) ("Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability"). For these reasons, the Board finds that the preponderance of the evidence of record is against a finding that the Veteran has mitral valve prolapse; therefore, the claim for service connection of mitral valve prolapse must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for mitral valve prolapse is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs