Citation Nr: 1318109 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-12 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for pericarditis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1968 to March 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. This case was previously before the Board in February 2011, when it was remanded for further development, to include providing the Veteran a VA examination. As the requested development has been completed, no further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). During the course of the development ordered by the Board, service connection for dysthymia was granted and this is a complete grant of the benefit sought with regard to this issue. The issue of service connection for hypertension is remanded to the RO via the Appeals Management Center in Washington, DC. VA will notify you if further action is required on your part. FINDING OF FACT Pericarditis did not have its clinical onset in service and is not otherwise related to active duty. CONCLUSION OF LAW The criteria for service connection for pericarditis have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a 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). Duty to Notify Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in January 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's February 2011 remand, VA provided the Veteran with a medical examination in May 2012. This examination contained all information needed to adjudicate the claim. Indeed, the examiner reviewed the objective evidence of record and documented the Veteran's current complaints. Moreover, the VA examiner performed a thorough clinical evaluation, then offered an opinion as to the nature of the claimed disability, accompanied by a rationale. Therefore, these examination is adequate for VA purposes. Thus VA has complied with the February 2011 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 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 a service connection claim, the threshold question is whether or not the Veteran actually has the disability for which service connection is sought. In the absence of proof of present disability, there can be no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability may be met by evidence of symptomatology at the time of filing or at any point during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Evidentiary Standards VA must give due consideration to all pertinent medical and lay evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). 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. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding is to be done by the Board")). When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts The Veteran's service treatment records show a chest X-ray at service entrance in September 1968 which showed no defects. He was treated in service in September 1968 for complaints of pain in the left side of his chest off and on for three years. The physical examination and electrocardiogram (EKG) were within normal limits, although a mid-systolic murmur was shown, which was also felt to be within normal limits. While the provider stated he could not rule out pericarditis, he listed the diagnoses as chest pain, unknown etiology, and probable psychophysiological reaction. After service separation, the record shows that the Veteran was treated for various health problems between 2005 and 2007. Treatment records reflect an ongoing diagnosis of hypertension, as well as diagnosis of hepatitis C, hyperthyroidism, diabetes mellitus, and low back pain. A September 2006 chest X-ray was read as normal, with a normal cardiomediastinal silhouette. On May 2012 VA examination, the examiner noted that the Veteran did not currently have a heart disease and had never been diagnosed with one. On physical examination, his heart was normal and his blood pressure was 142/82. EKG testing was normal and a chest X-ray from March 2011 was also normal. The Veteran had METs of 4.80 on exercise stress test, consistent with activities such as light yard work and brisk walking. The examiner noted that 50 percent of the MET limitation level resulted from back and knee pain. The examiner offered the opinion that the Veteran did not currently have a heart disability which was due to service. It was explained that heart disease was not confirmed in service and the Veteran had non-cardiac chest pain after service also, but appropriate testing did not show any cardiac disease. Based on service treatment records showing normal results despite complaints of chest pain and the fact that there is no current pericarditis or other heart disease and never has been, the examiner found that the Veteran did not have heart disability that was related to service. Analysis The Veteran seeks service connection for pericarditis, which he alleges had its onset in service. A claim for service connection requires evidence of an incident, injury, or disease in service, evidence of a current disability, and evidence of a causal relationship between the event in service and the current disability. In this case, there is no evidence of a current disability. The VA examiner in May 2012 has stated that the Veteran does not have, and has not had at any time during the appeals period, a diagnosed cardiac disability, to include pericarditis. The Veteran has not submitted any evidence to show that such a disability has ever been diagnosed or treated since service separation. All diagnostic testing, including chest X-rays, EKG, and cardiac stress tests have yielded normal results. The Veteran asserts that he had pericarditis in service in 1968. The Veteran's service treatment records indicate that pericarditis was listed as a possible explanation for his episodes of chest pain, but no definitive diagnosis was given. Testing did not confirm its presence and it has not been identified since his service discharge. Without evidence of a current disability, the claim of service connection for pericarditis must fail. See McClain v. Nicholson, 21 Vet. App. 319, 323 (2007); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the Veteran's claim that the pericarditis identified in service represented the onset of chronic cardiovascular disease. However, the Veteran is not shown to have medical expertise. Underlying cardiovascular disease is not a medical condition readily identifiable by a lay person. Even medical professionals rely on testing, including EKG, x-ray testing and other means to identify its presence. To the extent the Veteran can identify symptoms, he is competent to do so, but his recitation of cardiovascular symptoms does not equate to a diagnosis of cardiovascular disease. The medical evidence in the claims file is the most probative evidence of record and does not establish a basis for a grant of service connection. ORDER Entitlement to service connection for pericarditis is denied. REMAND Service treatment records reflect that the Veteran's blood pressure was recorded as 150/76 during the examination in September 1968. A week later, he was again seen for complaints of chest pain and had a recorded blood pressure of 148/102. The Veteran seeks service connection for hypertension, alleging onset of the condition in service in 1968. A claim for service connection requires evidence of an event, injury, or disease in service, evidence of a current disability, and evidence of a causal relationship between the in-service incident and the current disability. 38 C.F.R. § 3.303. It is the Veteran's general evidentiary burden to establish all elements of the claim. 38 U.S.C.A. § 5107(a); Fagan v. Shinseki, 573 F.3d. 1282, 1286 (Fed. Cir. 2009). The VA examiner in March 2011 concluded that the Veteran had hypertension, but that it was not exhibited in service. It was commented that the highest blood pressure reading in service was 150/76; no mention was made of the blood pressure reading of 148/102 a week later. Accordingly, the Board finds that further medical comment should be requested from the VA examiner with respect to whether his opinion regarding the etiology of the Veteran's hypertension is changed. Accordingly, the case is REMANDED for the following action: 1. Return the Veteran's claims file to the VA examiner that conducted the March 2011 hypertension examination for further comment on the determinative issue of the etiology of his hypertension. If, for whatever reason, this examiner is no longer available or able to provide additional comment, then obtain additional comment from another equally qualified examiner. If the examiner feels the need for another examination, this should be done. The examiner is asked to again review all pertinent evidence of record, including the service treatment records reflecting a blood pressure reading of 148/102 in September 1968 and to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hypertension had its clinical onset during active service or is related to any in-service disease, event, or injury. In providing this opinion, the examiner should specifically address all lay and medical evidence of record regarding the Veteran's hypertension, to specifically include the blood pressure readings recorded in service. The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Thereafter, readjudicate the Veteran's claim on appeal. If the full benefit sought on appeal is not granted, provide the Veteran and his representative with a supplemental statement of the case, and after they have had an adequate opportunity to respond, return his appeal to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs