Citation Nr: 1318464 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 12-29 720 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served with the Nebraska Army National Guard and U.S. Army Reserve from April 1952 to March 1962, from October 1963 to January 1967, and from March 1972 to May 1985 with verified periods of active duty for training (ACDUTRA) found in his service records and, presumably, with unverified periods of inactive duty training service (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." 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). FINDINGS OF FACT 1. The evidence of record does not show that the Veteran's heart disorder, currently diagnosed as coronary artery disease, is etiologically related to any period of ACDUTRA or INACDUTRA. 2. The evidence of record does not show that the Veteran's benign hypertension is etiologically related to any period of ACDUTRA. CONCLUSIONS OF LAW 1. A heart disorder, currently diagnosed as coronary artery disease, was not incurred in or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101(21), 101(24), 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2012). 2. Hypertension was not incurred in or aggravated in the line of duty during a period of ACDUTRA. 38 U.S.C.A. §§ 101(21), 101(24), 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and as interpreted by the United States Court of Appeals for Veterans Claims (the Court), have been satisfied by information provided to the Veteran in a letter from the RO dated in February 2012. This letter notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims, and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); and Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to disability ratings and effective dates was provided in the February 2012 correspondence. In any event, the Veteran and his attorney have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. VA also has a duty to assist a Veteran in the development of his claims. This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. In compliance with its duty to assist, the RO associated some of the Veteran's service treatment records and identified VA and private treatment records. Significantly, neither the Veteran nor his attorney has identified any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. It is evident from a review of the available service treatment records associated with the claims file that some are missing. According to an April 2012 Formal Finding of Unavailability of Service Records, any missing service treatment records are unavailable from the National Personnel Records Center (NPRC), the Records Management Center, both in St. Louis, Missouri, and the Nebraska National Guard. They concluded additional records do not exist or that they do not have them and that further efforts to locate such records would be futile. The Veteran also did not respond to a request for copies of any service treatment records he might have in his possession. The Board is mindful that, in a case such as this, where some service treatment records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While it is unfortunate that not all of the Veteran's service treatment records are available, this appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened obligation set forth in Cuevas and O'Hare in mind. The Board notes that there are no records expressly identified by the Veteran or his attorney that the RO has not obtained. The February 2012 duty-to-assist correspondence from VA to the Veteran specifically asked for private medical evidence showing that the Veteran's heart condition and hypertension had existed from the time of his military service to the present. He was invited to complete and sign a VA Form 21-4142 (Authorization and Consent to Release Information) so that VA could obtain this evidence on his behalf. He did not do so. Thus, the claims file and his electronic eFolder do not contain any private medical evidence from the time of his discharge from the National Guard in 1985 until 2004. The Board notes that earlier, in December 2011, the Veteran had signed a form indicating that he had submitted all his remaining information or evidence in support of another claim or that he had no other information or evidence to submit to VA. At the same time he returned to VA two signed but uncompleted VA Forms 21-4142. In any event, the Veteran and his attorney were given the opportunity to identify records from 1985 to 2004 and have not done so. Private and VA medical evidence associated with the claims file only refers to other contemporary records and not to those in the 1985 to 2004 time period. Therefore, in this appeal of denied service connection claims there are no additional medical records during the post-service period that VA must search for. In regard to the Veteran's claims for service connection for a heart disorder and for hypertension, VA examinations were not conducted. Under 38 U.S.C.A. § 5103A(d)(2), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, an examination is not needed because the Veteran's service treatment records are entirely negative for any indication of any coronary or blood pressure disorders. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the Veteran's claim because there was no evidence, other than his own lay assertion, that reflected that he suffered an event, injury, or disease in service that may be associated with his symptoms). Moreover, while coronary artery disease and hypertension recently have been diagnosed, there is no indication in the record of a causal connection between these diagnoses and any of the Veteran's periods of ACDUTRA or INACDUTRA or any incident therein. See Wells v. Principi, 326 F.3d 1381 (Fed.Cir. 2003) (noting that the Board has no obligation to obtain a medical opinion when there is no competent evidence that the appellant's disability or symptoms are associated with his service). Accordingly, it is not necessary to obtain a medical examination or medical opinion in order to decide these claims. 38 C.F.R. § 3.159(c)(4)(i); Duenas v. Principi, 18 Vet. App. 512, 517 (2004). The record reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matters on appeal. The Board finds that the available medical evidence is sufficient for an adequate determination of these claims. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with these claims would not cause any prejudice to the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in the line of duty. 38 U.S.C.A. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred in the line of duty. Id. Service connection is not available for a disease incurred or aggravated while performing INACDUTRA, except for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. 38 C.F.R. § 101(24)(C). Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury or heart disease incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110. ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserves or the National Guard of any State. 38 C.F.R. § 3.6(d). Presumptive periods within 12 months after discharge from service for heart disease and hypertension do not apply to periods of ACDUTRA and INACDUTRA and, therefore, do not apply in this appeal. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Generally, in order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Heart Disorder The Veteran seeks service connection for a heart disorder, but neither the Veteran nor his attorney have submitted any explanation or argument regarding how the Veteran's currently diagnosed coronary artery disease is related to any period of ACDUTRA or INACDUTRA when the Veteran served with the Nebraska National Guard. Available service treatment records are negative for any complaints of, or treatment for, any coronary disorder. Several periodic examinations during the course of the Veteran's long service with the National Guard indicated that he had no heart abnormalities. Electrocardiogram readings in February 1976 and November 1983 appeared to be within normal limits. A May 1978 chest X-ray study was normal. Post service, a May 2004 private medical examination after a complaint of dizziness showed no cardiovascular abnormalities, although a family history of heart disease and hypertension was noted. A December 2005 VA medical record indicated that the Veteran was taking Plavix daily and that he had abnormal cardiovascular findings, including palpation of heart with 1/6 SEM at base. A January 2008 VA treatment record showed a past history of a TIA, described as a trans cerebral ischemia. According to a February 2009 VA treatment record the Veteran stated that he had one cardiac stent two weeks ago "to a branch, not a main artery" and was doing fine. The Veteran claimed that a screening stress test led to this and that he had no symptoms. A history of TIA [also known as a transient ischemic attack] was diagnosed with treatment by Plavix since 2003. An April 2012 private medical record from the Nebraska Heart Institute showed that the Veteran had been treated for coronary artery disease since January 2009. It was noted that the Veteran had no chest discomfort suggestive of ischemia. It was also noted that the Veteran had not had any palpations, syncope or near syncope. He denied claudication. He had no TIA or stroke-like symptoms. There were also no symptoms attributable to valvular heart disease. Past medical history, however, included TIA. It was also noted that the Veteran's father and brother both died of a myocardial infarction. Impression was stable coronary artery disease with prescription drug therapy. Based on the evidence of record, the Board finds that the Veteran is not entitled to service connection for a heart disorder. Initially, the Board notes that the Veteran is diagnosed with coronary artery disease and a past history of TIA and, therefore, meets that requirement for service connection that a claimant must manifest a current disability. However, the evidence does not show, nor does the Veteran contend, that he experienced the onset of coronary artery disease or a TIA during any period of performing ACDUTRA or during some unverified period of INACDUTRA. (As noted above, service connection is not available for a disease incurred or aggravated while performing INACDUTRA, except for an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. 38 C.F.R. § 101(24)(C)). The Veteran's available service treatment records do not reflect any complaints of, or treatment sought for, any problem related to his heart. Furthermore, clinical evidence of record reflects a diagnosis of coronary artery disease in approximately 2009 and that the Veteran had a history of TIA and treatment with Plavix since 2003. There is no evidence that the Veteran was diagnosed with coronary artery disease or suffered a TIA before 2003, or 18 years after his separation from the National Guard. This gap of years between discharge from service and evidence of a disease can be considered as evidence against a claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, there was no medical evidence of record that offered an etiology for his TIA or coronary artery disease or provided a nexus to a disease or injury incurred or aggravated in the line of duty during any period of ACDUTRA or INACDUTRA. Moreover, the Veteran has not provided any medical evidence to demonstrate that any coronary artery disease or heart disorder was caused by or was a result of his military service. Rather, the available service treatment records are devoid of any notation related to a heart disorder in the 1952 to 1985 time period while available post-service medical records provide no linkage between the Veteran's currently diagnosed coronary artery disease and history of TIA and any period of service in the National Guard. There is simply no evidence indicating that a relationship exists between the Veteran's National Guard service and his coronary artery disease diagnosed in 2009 or between service and his history of TIA. Given the absence of competent evidence in support of the Veteran's claim, for the Board to conclude that the Veteran's coronary artery disease or TIA was incurred as a result of any period of ACDUTRA or INACDUTRA during his National Guard service would be mere speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert v. Brown, 5 Vet. App. 30, 33 (1993). Without medical evidence of a nexus between a claimed disease or injury incurred in service and the present disease or injury, service connection cannot be granted. Hickson, 12 Vet. App. at 253. Hypertension The Veteran also seeks service connection for hypertension, but neither the Veteran nor his attorney have submitted any explanation or statements on how the Veteran's currently diagnosed benign hypertension is related to any verified period of ACDUTRA when the Veteran served with the Nebraska National Guard. Available service treatment records for the Veteran's periods of service with the Nebraska National Guard, including periodic examinations, are negative for any treatment or diagnosis of hypertension. These service treatment records do not show elevated blood pressure readings and there is no indication that the Veteran was suffering from hypertension at any time during his service with the National Guard. For example, his blood pressure was recorded as: 124/84 in April 1961; 130/84 in October 1963; 138/85 in January 1966; 136/88 in March 1972; 120/70 in February 1976; 122/84 in February 1978; 128/80 in February 1980; and 118/78 in November 1983. On several reports of medical history the Veteran completed during his long career with the National Guard, he checked the "no" box when asked whether he ever had high or low blood pressure. Post service, a May 2004 private medical examination contained no indication or suggestion that the Veteran had a history of hypertension or had ever been diagnosed with hypertension. His blood pressure during that examination was measured as 136/77. A December 2005 VA medical record notes that the Veteran's blood pressure measured 132/64. According to a January 2007 VA medical record the Veteran's blood pressure measured 130/71. According to a January 2008 VA medical record the Veteran's blood pressure measured 128/69. According to a February 2009 VA treatment record, the Veteran's blood pressure measured 132/68. According to a February 2010 VA medical record, the Veteran's blood pressure measured 122/63. In February 2011, VA recorded the Veteran's blood pressure as 119/62. In February 2012, VA recorded the Veteran's blood pressure as 108/64. An April 2012 private medical record from the Nebraska Heart Institute showed that the Veteran was treated for hypertension. His blood pressure was 120/82. The impression was benign hypertension. Based on the evidence of record, the Board finds that the Veteran is not entitled to service connection for hypertension. It is unclear whether the Veteran currently has a hypertension disorder as defined in VA regulations. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (defining hypertension for rating purposes as diastolic blood pressure predominately 90mm or greater and isolated systolic hypertension meaning the systolic blood pressure is predominately 160mm or greater with a diastolic blood pressure of less than 90mm). Nevertheless, even conceding that the recent diagnosis of benign hypertension constitutes a current disability for service connection purposes, the evidence does not show, nor does the Veteran contend, that he experienced the onset of his hypertension during any period of service with the National Guard. His available service treatment records do not reflect any complaints of, or treatment sought for, any problem related to high blood pressure while performing ACDUTRA. As noted above, service connection is not available for a disease incurred or aggravated while performing INACDUTRA. Furthermore, clinical evidence of record reflects a diagnosis of benign hypertension in April 2012. There is no evidence that the Veteran was diagnosed with hypertension before 2012, or 27 years after his separation from the National Guard. This gap of years between discharge from service and evidence of a disease can be considered as evidence against a claim. Maxson, 230 F.3d at 1333. In addition, there was no medical evidence of record that offered an etiology for hypertension or provided a nexus to a period of ACDUTRA. Therefore, service connection fails in this case because there is no competent medical evidence of record that links a current diagnosis of benign hypertension to military service. Hickson, 12 Vet. App. at 253. Given the absence of competent evidence in support of the Veteran's claim, for the Board to conclude that the Veteran's benign hypertension was incurred as a result of any period of ACDUTRA during his National Guard service would be mere speculation, and the law provides that service connection may not be based on a resort to speculation or remote possibility. 38 C.F.R. § 3.102; Obert, 5 Vet. App. at 33. Conclusion In reviewing the Veteran's claims folder the Board was unable to find any written arguments by either the Veteran or his attorney as to why the Veteran's claimed disorders should be service connected. Lay statements are considered to be competent evidence when describing the features or symptoms of an injury or illness. See Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Veteran's service personnel records describe his military occupational specialties over three decades associated with the National Guard as variously a truck driver, cook, food service specialist, and a medical senior sergeant and that he only completed the ninth grade. There is no indication in the record that the medical senior sergeant position required any medical training or required the Veteran to administer medical treatment. Nevertheless, even if the Board would assume in this case that the Veteran is a layman with some medical background, and that he is competent to describe the extent of his current symptomatology and the continuity of any symptomatology from service onwards, he has done neither in this appeal. A search of the claims file shows that it does not contain any statement by the Veteran or his attorney on the connection between these claimed disorders and his long period of service with the Nebraska National Guard. The Board also notes that there is no evidence that the Veteran has the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or the causal questions of whether his heart or hypertension conditions can be attributed to his in-service experiences. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As indicated previously, although the Veteran once functioned as a medical senior sergeant, there is no indication in the record that the Veteran obtained any medical training or expertise in connection with that position that would enable him to offer competent opinions on any medical matter. In any event, he has not done so in this case. Therefore, after considering all of the evidence of record, the Board finds that service connection for a heart disorder and for hypertension is not warranted in this case. Service connection fails in this case because there is no competent evidence of record, lay or expert, that links a current diagnosis of coronary artery disease to any period of ACDUTRA or INACDUTRA or that links his hypertension to any period of ACDUTRA. Hickson, 12 Vet. App. at 253. Accordingly, the Board finds that the preponderance of the evidence is against these claims for service connection for a heart disorder and for hypertension. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against his claims. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a heart disorder, diagnosed as coronary artery disease, is denied. Service connection for hypertension is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs