Citation Nr: 1323223 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 08-18 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a heart disability (claimed as heart arrhythmia). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran had honorable active service from October 1995 to September 4, 2002. The Veteran also served on active duty from September 5, 2002 to May 2005; however, this service is considered dishonorable service for VA purposes. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2009, the Veteran testified at a personal hearing at the RO before an Acting Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In January 2010, Board remanded this claim for further evidentiary development. In February 2012, the Board remanded this claim so that the Veteran could testify before a Veterans Law Judge, as the July 2009 Acting Veterans Law Judge who presided over that hearing had retired. The Board notes that the Veteran was scheduled for a Travel Board hearing for June 19, 2012. The Veteran failed to appear for the scheduled hearing and no good cause was given for such failure to appeal. 38 C.F.R. § 20.702(d). In September 2012 and April 2013, the Board remanded this claim for further evidentiary development. The case has now been returned to the Board for further appellate action. FINDING OF FACT The most probative evidence indicates that the Veteran does not currently suffer from a diagnosed heart disability. CONCLUSION OF LAW The requirements for establishing service connection for a current heart disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, letters dated in September 2005, November 2006, and January and October 2010 provided notice to the Veteran regarding what information and evidence was needed to substantiate her claim for service connection, including informing her of what information and evidence she must submit and what information and evidence will be obtained by VA. This letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in May 2013. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file includes the available service treatment records, post-service treatment records, VA medical records and examination reports, and the transcript from the Veteran's July 2009 Board hearing. This matter was before the Board initially in January 2010, when the case was remanded to request any outstanding private and/or VA treatment records, and to obtain additional service treatment records from the David Grant Medical Center. In accordance with the mandates of the January 2010 Remand, the Appeals Management Center (AMC) issued a letter to the Veteran in January 2010 requesting information concerning relevant treatment. The RO/AMC contacted the Records Management Center (RMC) in January 2010 concerning service treatment records, and such records were also requested from the National Personnel Records Center (NPRC). In January 2010, the AMC was informed that service treatment records were not found in the RMC. In an August 2010 report, the NPRC noted that searches of the additional service treatment records were conducted but no records were found for the Veteran. VA informed the Veteran on October 14, 2010 that her service treatment records were unavailable and the Veteran was requested to provide additional records in support of her claim. A formal finding of unavailability was issued in October 2010. The Board finds that the RO/AMC has properly acted within the mandates of the duty to assist under 38 C.F.R. § 3.159 (2012), and that further attempts to obtain additional records would be futile. In February 2012, the Board again remanded this claim so as to afford the Veteran an opportunity to have another hearing with a Veterans Law Judge since the July 2009 Acting Veterans Law Judge retired prior to the promulgation of decision in this case. However, the Veteran failed to report for her hearing, scheduled in June 2012. Thereafter, the Board remanded this claim in September 2012 for a VA examination to determine the nature of her disorder and to obtain an opinion as to whether any such disorder is related to service. In April 2013, the Board determined a supplemental opinion was necessary prior to adjudicating the Veteran's claim and once again remanded this claim. Such opinion was obtained in May 2013. All of the actions previously sought by the Board through its prior development request have been, where possible, completed as directed. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Following remand and development, a supplemental statement of the case (SSOC) was issued the May 2013, which continued the previous denial. Finally, the Veteran provided relevant testimony during the hearing before a now retired Acting Veterans Law Judge (AVLJ) in July 2009. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the AVLJ identified the issue on appeal, explained what is needed to establish service connection, and asked the Veteran to identify evidence relevant to the claim. The AVLJ also invited the Veteran to obtain a medical nexus opinion and submit it. As such, the Board finds that no further action pursuant to Bryant is necessary. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). However, compensation is not payable unless the period of service on which the claim was made was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a). Notably, the Veteran is shown to have periods of service between October 1995 and September 4, 2002 and between September 5, 2002 and May 19, 2005. The Veteran's second discharge is shown to be under other than honorable conditions and compensation cannot be paid for any disorder incurred or aggravated during that period of service. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). As noted above, some of the Veteran's service treatment records are unavailable. In situations such as this, where some of the Veteran's service treatment records are unavailable, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001) The Board has reviewed all the evidence in the Veteran's claims file, including review of her electronic virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that she has a heart disability, claimed as heart arrhythmia, which began during her honorable period of service. Available service treatment records from the Veteran's honorable period of active duty include a March 2002 treatment record which notes that the Veteran reported shortness of breath and heart palpitations. It was also noted that the Veteran reported to David Grant Memorial Hospital but ultimately left without receiving treatment or examination. Post-service treatment records also suggest symptoms that the Veteran attributes to a heart condition, but which have primarily been shown to be attributed to multiple causes, to include muscle strain and anxiety. In this respect, VA treatment records demonstrate the Veteran's complaints of heart arrhythmia in August 2006. A November 2006 emergency treatment record reveals the Veteran's reports of sharp pain in her chest; a history of palpitations was noted. The treatment report stated that no evidence of acute cardiac ischemia was found on laboratory testing. It was noted that the likely explanation for pain was musculoskeletal secondary to working out the day prior. Additionally, a January 2010 VA treatment record notes that the Veteran's reported symptoms are "long standing" and she used a Holter monitor in the past, but did not have an event while she was on the monitor. A September 2010 VA emergency department note reported that the Veteran complained of chest pain. It was noted that the Veteran had similar episodes in the past which were attributed to anxiety. A December 2010 VA treatment report noted that the Veteran had a Holter monitor for 21 days of which 18 hours of testing was readable, wherein the Veteran had six episodes of sinus tachycardia, totaling 30 minutes. Finally, a January 2013 VA emergency room treatment record notes the Veteran's history of palpitations, but states it is negative, per the Veteran's report. Importantly, the Board notes that at no point during her treatment at VA facilities was an etiological opinion provided attributing a heart disability to the Veteran's honorable period of service. In October 2012, in compliance with the Board's September 2012 remand directives, the Veteran was scheduled for a VA compensation examination. Upon physical examination, the examiner noted a history of heart palpitations. The examiner determined that the Veteran does not have ischemic heart disease, a valve condition, or infectious cardiac conditions. She does not require medication for a heart condition. The examiner further noted that the Veteran has not had a cardiac arrhythmia. On examination the examiner found a regular heart rhythm, normal heart sounds, normal pulses, and no edema. Additionally, the examiner stated there was no evidence of cardiac hypertrophy or dilation, according to the results of an October 2012 echocardiogram. Exercise stress test was normal. Following a review of the claims file and examination of the Veteran, the examiner determined that the Veteran's claimed heart condition is less likely as not incurred in or caused by her military service. In support of his findings, the examiner stated that the Veteran reports a history of palpitations and reports one episode of receiving treatment for tachycardia with intravenous medication. The examiner stated this history is compatible with a diagnosis of supraventricular tachycardia, which is paroxysmal and can be converted to a normal rhythm by the injection of adenosine. The examiner further stated that after reviewing the claims file, no records are available which document this episode or report a firsthand account of the recording of tachycardia. The examiner noted that all EKGs of record showed normal rhythm, as did a Holter monitor. While the Veteran presented for acute care in March 2002, she left prior to being seen. The examiner also noted the visits to the VA emergency room in 2006 and 2010, but the Veteran did not have palpitations or arrhythmia at that time. The examiner stated that although the Veteran's report is compatible with a history of supraventricular tachycardia, there is no evidence available to substantiate a diagnosis at this time. He further stated that the next typical step in evaluation for such symptoms would be a longer recording which is usually worn for 2 weeks to 1 month, which has not been performed in the Veteran's case. In the April 2013 remand, Board noted that in December 2010, the Veteran did have a Holter monitor for 21 days, of which 18 hours of testing was readable, wherein the Veteran had six episodes of sinus tachycardia, totaling 30 minutes. However, since the October 2012 examiner did not appear to consider this information when rendering his opinion, the Board requested an addendum opinion. In May 2013, the October 2012 VA examiner again reviewed the claims file and provided an addendum opinion. The examiner stated that the December 2010 Holter is insufficient evidence to establish a diagnosis of a cardiac abnormality because the study only provided 18 hours of heart rhythm data, instead of the intended 21 days. The examiner further stated that the only noted heart rhythm was sinus tachycardia, with a maximum of 160 beats per minute (BPM). He indicated that given the Veteran's age at the time of the examination (43 years old) her maximum predicted heart rate would be 177 BPM. However, it would not be unusual for a physically active 43 year old person to have sinus tachycardia in this range with normal activities, including climbing the stairs. The examiner stated the mechanism of the heart rhythm was noted to be sinus, which is normal. Therefore, the examiner concluded that his opinion remains that there is insufficient evidence to establish a diagnosis for the Veteran's heart palpitations. Upon review of the record, the Board finds the determinations in October 2012 and again May 2013 was that the evidence is insufficient to establish a diagnosis of heart palpitations to be of significant probative value. Importantly, to date, the Veteran has not been diagnosed with any heart disability. In fact, in October 2012, the VA examiner specifically excluded diagnoses of ischemic heart disease, a valve condition, or an infectious cardiac condition. Further, in October 2012, the examiner noted the Veteran's reported history of palpitations and receiving treatment for tachycardia with intravenous medication. The examiner acknowledged that this history is compatible with a diagnosis of supraventricular tachycardia, which is paroxysmal and can be converted to a normal rhythm by the injection of adenosine, but there were no records available to support a finding of tachycardia. The October 2012 VA examination and opinion, and subsequent May 2013 addendum were made following a review of the entire claims file and relevant history, including the Veteran's reports of suffering from chest pain and other symptoms since service, and contains clearly-stated rationale that is consistent with the available evidence. Thus, these opinions warrant great probative weight. There is no probative opinion contradictory to the October 2012 opinion and May 2013 addendum opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board acknowledges the Veteran's July 2009 Travel Board hearing testimony, as well as her lay statements in support of her claim. Further, while she is competent to testify as to her symptoms, as a lay person, she is not competent to diagnose such symptoms as a heart disorder, as such matter requires medical testing and training to determine. Accordingly, her opinion as to the diagnosis or etiology of a heart disorder is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the VA examiner's opinions are significantly more probative than the Veteran's lay assertions. In short, the VA examiner has concluded that there is no objective evidence to that substantiates a current diagnosed heart disability. In the absence of a currently diagnosed heart disability, there is no reasonable basis to establish service connection. See Degmetich, 104 F.3d 1328 (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes). The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). The preponderance is against the Veteran's claim, and therefore, her claim for service connection must be denied. ORDER Entitlement to service connection for a current heart disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs