Citation Nr: 1318531 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-16 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disability, claimed as cardiomyopathy. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wasik, Counsel INTRODUCTION The Veteran served on active duty from August 20, 1965, to September 16, 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. In April 2012, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. When this case was before the Board in September 2012, it was remanded for further development. FINDING OF FACT A heart disability was not present in service and the Veteran's current heart disability is not related to service. CONCLUSION OF LAW The criteria for service connection for a heart disability claimed as cardiomyopathy 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 Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (the Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that the Veteran was provided adequate VCAA notice in a letter sent in January 2009, prior to the March 2009 rating decision on appeal. The duty to assist has also been met in this case. The Veteran's service treatment records and service personnel records are associated with the record. Post-service treatment records have been obtained from those VA and non-VA providers identified by the Veteran as having relevant records. Neither the Veteran nor his representative has identified any other existing evidence that could be obtained to substantiate the claim, and the Board is also unaware of any such evidence. Pursuant to the Board's remand directive, the Veteran was afforded an appropriate VA examination in January 2012. The report of the January 2013 VA examination reflects that, in addition to examining the Veteran, the examiner reviewed the Veteran's pertinent history. The examiner provided a diagnosis of a heart disorder and opined that the disorder was not etiologically linked to the Veteran's active duty service. A rationale supporting the etiology opinion was provided with citations to pertinent clinical records (or the lack thereof). The examination report is adequate for adjudication purposes. Additionally, the examination report complies with the Board's September 2012 remand instructions. The Board accordingly finds the originating agency has substantially complied with the requirement for examination articulated in the Board's remand. See Dymant v. West, 13 Vet. App. 141, 146-47 (1999). Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53(1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual background The Veteran was found to be without pertinent abnormalities at the time of the August 1965 entrance examination. The Veteran completed a Report of Medical History in August 1965 wherein he denied having or ever having had any problems other than mumps. In September 1965, the Veteran presented to a clinic with complaints of headaches. The impression was upper respiratory infection. Later the same month, it was recorded that the Veteran complained of substernal chest pain with inspiration and shortness of breath with exertion. A chest X-ray was interpreted as showing a heart which had a wide appearance in the aorta area. The next day, it was determined that the Veteran was disqualified from service by internal medicine. In September 1965, it was written that the Veteran had a history of heart inflammations in the past; the last time was three years prior. Physical examination was conducted. The impressions were recurrent severe headaches, anxiety reaction and cannot rule out post traumatic syndrome. The disability was found to have existed prior to service. The Veteran was found to be disqualified from service. At the time of the September 1965 separation examination, the pertinent diagnosis was severe recurrent headache. The Veteran completed a Report of Medical History in September 1965 wherein he reported that he had or had had frequent or severe headaches as well as pain or pressure in the chest. Subsequent to the Veteran's discharge, there is no medical evidence of the presence of any heart disorder until more than 40 years after the Veteran's discharge from service. In January 2009, the Veteran submitted a claim of entitlement to service connection for heat stroke with secondary heart murmur (mitral valve). A June 2009 VA clinical record reveals the Veteran presented trying to get disability from VA. He informed the clinician that he had had a scarred mitral valve for most of his life and that it was diagnosed during active duty. The pertinent impression was mitral valve stenosis. In August 2009, the Veteran reported that since he was in his twenties, he had had episodic palpitations which were occasionally associated with chest pain but no shortness of breath. The Veteran reported that he had been diagnosed with mitral valve disease while in the service and was discharged early. The Veteran's main concern was discussing service connection for his cardiac disability. Physical examination was conducted. The pertinent diagnosis was cardiomyopathy with a low ejection fraction and palpitations and questionable etiology. In October 2009, it was noted that the Veteran had cardiomyopathy of an unknown origin. The Veteran reported a long history of being told he had a heart murmur. The pertinent assessment was that the Veteran had cardiomyopathy. It was written that the Veteran had risk factors for coronary artery disease. A stress test conducted in November 2009 was interpreted as revealing decreased ventricular function and no evidence of ischemic disease. In December 2009, two VA health care professionals wrote a letter in support of the Veteran's disability claim. The authors noted that the Veteran informed them he had been diagnosed with a mitral valve disorder 40 years prior while serving in the military. The Veteran reported he had been experiencing palpitations and fatigue for the past few years which had become progressively worse. A nuclear stress test was referenced as showing the Veteran did not have current ischemic coronary disease but cardiac echo Doppler findings revealed the Veteran had New York Class II heart failure. The authors opined these findings and the Veteran's symptoms would support his claim for permanent disability. In March 2011, the Veteran wrote that he did not have heart issues prior to his active duty service and that he was able to play football. He indicated that he fell during physical conditioning in service and was taken to a hospital. He was told that he had a heart murmur and was unfit for military service. The Veteran testified before the undersigned in April 2012 that, to the best of his memory, he was treated for heat stroke during active duty. While exercising on a hot day, he experienced chest pain and a severe headache and then passed out. He denied having heart problems prior to his active duty service. He was able to play sports during high school including football and baseball and was able to dance. He testified that he was treated within 30 days after discharge for chest pains. This was the time the Veteran learned he had an enlarged heart. The Veteran tried to obtain these records but the physician had died and the hospital was no longer in existence. The Veteran testified that the military informed him that he was being discharged for medical reasons but was not informed of anything more specific than that. The Veteran testified that he had consistently received medical treatment for a heart condition or chest problems since discharge. The Veteran opined that he did not have a heart disorder prior to his active duty service. He was examined during active duty as part of a cardiology consult and no heart disease was found at the time. In the 1980's, it was determined that the Veteran had pericarditis. The Veteran's sister wrote an email in April 2012 wherein she reported that the Veteran did not have any ailments other than bronchitis while growing up. He was never diagnosed with any heart problems prior to military service. In May 2012, a VA physician reported that the Veteran was seen to discuss service connection for his heart disease. The Veteran reported he went into active duty classified as 1A and developed chest pain and shortness of breath during military exercises in 1965. He was admitted to an Air Force hospital and diagnosed with heat stroke. He was then reclassified as 4F and received a medical discharge. The Advanced Registered Nurse Practitioner wrote that after review of the medical records and medical history, it was her opinion that it was as likely as not or at least possible that the Veteran's current disabilities began in service or were the result of an injury he had in service. The assessments included cardiomyopathy, sinus bradycardia and history of myocardial infarction without obstructive disease. A VA examination was conducted in January 2013. The Veteran informed the examiner that he had an enlarged heart due to heat stroke. He reported that while on active duty, he passed out in 107 degree heat and woke up in a hospital three days later. He said he was informed that he had an enlarged heart and was being discharged from service. The Veteran provided conflicting evidence regarding when he stopped smoking which the examiner noted. The Veteran informed the examiner that he was first diagnosed with inflammation of the heart in the 1970's. The examiner diagnosed non-ischemic cardiomyopathy. The examiner opined that it was less likely than not that the cardiomyopathy was caused by, or a result of, or etiologically related in any way to service to include complaints of headaches during service and subsequent reports by the Veteran that he experienced heat stroke during active duty. The rationale was based on medical literature review, medical record review and clinical experience. It was noted that the etiology of the Veteran's cardiomyopathy has been determined to be "nonischemic" based upon results of testing which indicate that the perfusion of blood flow to the Veteran's heart muscle was normal. The exact cause of the cardiomyopathy is unknown. It was written that there were many potential causes of non-ischemic cardiomyopathy including hypothyroidism (especially when accompanied by frequent palpitations), hypertension and obesity - all of which the Veteran has. The examiner wrote that there was no objective evidence that the Veteran's non-ischemic cardiomyopathy is etiologically related to the Veteran's active duty service. The examiner found there was no objective evidence of onset of non-ischemic cardiomyopathy or any chronic heart condition, during service, or within two years of service and that there is no objective evidence of the presence of a heart condition during service. The examiner opined that it is most likely that the finding of a wide appearance in the aorta region on chest X-ray was of no clinical significance as this region can easily appear as widened on chest film if the X-ray was taken at a slight angle. Regardless of whether this was truly widening of the aorta in 1965 or just the appearance of widening, the examiner noted that the aortic region refers to the portion of the chest film where the aorta exits from the heart which is outside of the heart itself. The examiner reported that widening in this area does not mean that the heart itself was enlarged (as in cardiomyopathy). The examiner found that what is meant by the Veteran's supplied history of heart inflammation is unknown. The examiner wrote there was no objective evidence that any condition of heart inflammation that might have occurred prior to, during or after active duty, resulted in the Veteran's current heart condition. The examiner noted that there is no objective evidence that the Veteran suffered heat stroke during active duty or any heat-related illness which would result in any permanent heart condition. The examiner opined that while heat stroke can occur during conditions described by the Veteran, it would be highly unlikely that the service treatment records would be silent for such a condition. True heat stroke is a critical (life and death) condition that would have resulted in immediate medical treatment to include rapid cooling, electrolyte management and prompt transport to a hospital for extensive testing and monitoring. The examiner noted that the Veteran was in an area where emergency hospital care would have been available and would have been used to treat such a condition and the service treatment records were completely silent as to any heat stroke. The examiner's review of the medical literature revealed that headaches were not a cause of cardiomyopathy. She opined that the Veteran's non-ischemic cardiomyopathy was not etiologically related to the Veteran's complaints of headaches during service. Analysis The Board finds that service connection is not warranted for a heart disability. There is evidence in the service treatment records that a chest X-ray was interpreted as revealing the aorta had a wide appearance. However, no heart disability was diagnosed on the basis of this observation. The service treatment records are silent as to complaints of, diagnosis of or treatment for heart problems other than the annotation of the enlarged aorta. Significantly, the examiner who conducted the January 2013 VA examination opined that the annotation of an enlarged aorta was of no clinical significance and that the widening itself did not document an enlarged heart as in cardiomyopathy. The Board finds that the preponderance of the competent probative evidence demonstrates that the Veteran did not have a heart disorder during active duty. The Board finds that service connection is not warranted for a heart disorder on a direct basis as the preponderance of the competent probative evidence demonstrates that the Veteran's heart disorder is not related to his active duty service. The evidence linking the Veteran's current heart disability to service is limited to the Veteran's own statements and the December 2009 and May 2012 medical opinions. The Veteran's own opinion that his current heart disability is related to his active service is of no probative value since he is a lay person who is not competent to provide an opinion concerning the etiology of his heart disorder The December 2009 opinion from the two VA health care professionals seems to link a current heart disorder (New York Class II heart failure) to active duty. The probative value of this opinion is significantly lessened, however, as it is based on the Veteran's self-reported medical history of having a mitral valve disorder during active duty. The letter reveals the Veteran informed the clinicians that he was diagnosed with a mitral valve disorder during active duty but the service treatment records are completely silent as to the presence of a problem with the Veteran's mitral valve. In fact, other than the annotation of the appearance of an enlarged aorta, there are no findings of any cardiac pathology in the service treatment records. A September 1965 cardiac consultation did not result in an actual diagnosis of a heart disorder. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account is of no probative value. See, e.g., Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993). The probative value of this evidence is also lessened by its failure to include a rationale to support the etiology opinion. The clinicians provided no support of any kind for why they determined that the current heart disability was linked to active duty. The Board finds that reduced probative value should be accorded the May 2012 medical opinion as this too is based on an inaccurate medical history provided by the Veteran. The Veteran informed the VA physician that he was hospitalized after being diagnosed with a heat stroke during active duty. Significantly, the service treatment records are completely silent as to complaints of, diagnosis of or treatment for heat stroke. The Board notes the Veteran is competent to report on being hospitalized for treatment of heat stroke during active duty. However, competency and credibility are two different determinations the Board has to make regarding the evaluation of these statements. The Board finds that if the Veteran actually did collapse from heat stroke and was hospitalized for several days during active duty, the service treatment records would have documented such treatment. The complete silence in the service treatment records as to any indication the Veteran was hospitalized (regardless of the cause) and the complete silence with regard to any mention of a heat stroke weighs heavily against the allegation. Furthermore, if the Veteran was discharged from active duty due to the heat stroke as alleged, the Board finds that such a fact would have been recorded, at least once, somewhere in the service treatment records. Again, the service treatment records are completely silent as to complaints of, diagnosis of or treatment for heat stroke. In fact, a physician annotated the Veteran's September 1965 Report of Medical History to indicate that he had reviewed the Veteran's statements and found that the Veteran has not experienced a significant illness or injury since induction. This annotation was made subsequent to the time when the Veteran had allegedly been hospitalized for heat stroke. The Board finds the lack of pertinent annotations in the service treatment records completely undercuts the credibility of the Veteran's allegation of experiencing heat stroke and subsequent hospitalization during active duty. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [contemporaneous evidence has greater probative value than history as reported by the veteran]. It is further noted that not only may the Veteran's memory have dimmed with time, but self interest may play a role in the more recent statements and testimony. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]; cf. Pond v. West, 12 Vet. App. 341, 346 (1999). As the Board has determined that the preponderance of the evidence demonstrates that the Veteran was not diagnosed with heat stroke during active duty, the May 2012 (and the September 2009) medical statements are based, at least in part, on an inaccurate factual background. This causes the Board to place reduced probative value on the etiology opinions included therein. The Board finds that the probative value of the May 2012 etiology opinion is lessened as it is somewhat speculative. The physician wrote that "it is as likely as not or at least possible" that the Veteran's current disabilities began in service or were the result of the injury the Veteran had in service. The Board finds the use of the phrase "at least possible" lessens the probative value of the etiology opinion as it is speculative. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (finding a doctor's opinion that "it is possible" and "it is within the realm of medical possibility" too speculative to establish medical nexus). The probative value of the May 2012 etiology opinion is also lessened in that the physician did not provide any rationale for why she found the current disabilities were etiologically linked to the Veteran's active duty service. She merely wrote that the opinion was based on a review of the medical records and the Veteran's medical history. The Board finds the most probative evidence regarding the etiology of the Veteran's current heart disorder is the report of the January 2013 VA examination. The examiner had access to and reviewed the evidence in the claims file and also conducted a physical examination of the Veteran. The examiner diagnosed the presence of non-ischemic cardiomyopathy and affirmatively opined that the disorder was not etiologically linked to the Veteran's active duty service. The examiner provided a rationale to support the determination with citations to the pertinent clinical evidence during active duty or the lack thereof as well as to the pertinent post-service medical evidence. The examiner also performed a search of pertinent medical literature in forming the opinion. To the extent that the examiner's opinion is based on a finding of a lack of evidence of treatment for heat stroke during active duty, the Board finds such reliance is acceptable in the current case. As set out above, the Board has found that the Veteran's allegation of experiencing a heat stroke and being subsequently hospitalized to treat the disorder to be not credible. The Board finds the opinion included in the January 2013 VA examination is based on an accurate factual background. The examiner also provided adequate rationale regarding why the Veteran's current heart disorder was not etiologically linked to his reports (and documented) headaches during active duty as the medical literature did not support such a link. For the foregoing reasons, the Board finds that the claim for service connection for a heart disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence weighs against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for heart disability is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs