Citation Nr: 1325137 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 12-09 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for endocarditis, to include as secondary to a service-connected disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from December 1943 to April 1946. This matter is on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. This appeal was remanded by the Board in November 2012 for further development. An appeal on the issue of entitlement to service connection for a skin disorder was also perfected by the Veteran and was also addressed in the Board's November 2012 Remand. However, a June 2013 decision granted service connection for the skin disability. That represents a full grant of the benefit sought on appeal, and that claim is no longer before the Board. Shoen v. Brown, 6 Vet. App. 456 (1994). 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). FINDING OF FACT Endocarditis was not shown in service or for many years thereafter, and is unrelated to active duty service or to the Veteran's service-connected basal cell carcinoma. CONCLUSION OF LAW Endocarditis was not incurred in or aggravated by service, and is not related to service or to a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims 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, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any 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 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice requirements apply to all five elements of a service-connection claim, to include 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. Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded should be included. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board finds that the duty to notify was satisfied by a letter sent to the Veteran in January 2009 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, and notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). VA also has a duty to assist a Veteran in the development of a claim. That duty includes assisting in the procurement of service medical records and other pertinent records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service medical records and VA outpatient treatment records. The Veteran submitted treatment records from a private facility and his own statements in support of his claim. A VA examination with respect to the issue on appeal was also obtained in January 2013, and this examiner provided an opinion in June 2013 after a review of the claims file. 38 C.F.R. § 3.159(c)(4) (2012). When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board finds that the VA opinion obtained is adequate. It is predicated on a full understanding of the Veteran's medical history, and provides a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). This appeal was remanded by the Board in November 2012 for further development. The Board instructed the RO to obtain the names and addresses of all medical providers who have treated the Veteran's endocarditis since 2009 and to provide him with a VA examination in order to determine the nature and etiology of this disorder. The Board is now satisfied that there was substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Specifically, the Veteran was sent a letter in November 2012 requesting information regarding any treatment he has received for his endocarditis since 2009. The RO did not receive a response to that letter. The duty to assist is not a one-way street. If a veteran wishes help in developing his claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran was also provided a VA examination in January 2013. Although the claims file was not available at that time, the examiner was able to render an addendum opinion in June 2013 after reviewing the claims file. Therefore, the Board finds that examination adequate for adjudication. After the required development was completed, the claim was readjudicated and the Veteran was sent a supplemental statement of the case in June 2013. Accordingly, the Board finds substantial compliance with the Remand directives. Therefore, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence must show: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). In-service incurrence and a relationship to service may be established through a demonstration of continuity of symptomatology for certain specific chronic disorders. 38 C.F.R. § 3.303(b) (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). However, service-connection may be established under 38 C.F.R. § 3.303(b) only for disorders considered to be chronic under 38 C.F.R. § 3.309(a). Endocarditis is considered a chronic disease under 38 C.F.R. § 3.309(a), and may be service connected under 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection will also be presumed for chronic diseases such as endocarditis if manifest to a compensable degree within one year after discharge from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection is also warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2012). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability or death benefits. 38 U.S.C.A. § 1154(a) (West 2002); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, 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); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Veteran claims entitlement to service connection for endocarditis, which he believes is related to his service-connected basal cell carcinoma. However, after a review of the evidence of record, the Board determines that service connection is not warranted for endocarditis. As an initial matter, the service medical records that are available do not show complaints of, treatment for, or a diagnosis related endocarditis or any other cardiovascular disorder while in service. Significantly, at the time of the Veteran's separation physical examination in April 1946, a review of his cardiovascular system was normal and he did not mention any symptoms potentially indicative of any cardiovascular disorder. The post-service evidence does not show an incident of endocarditis until he was treated for endocarditis in July 2001. The evaluating physician noted that the Veteran already had a 12 to 13 year history of mitral valve prolapse with severe mitral regurgitation and, while various physicians had recommended surgery to replace that valve, the Veteran has elected a more conservative treatment approach. Subsequent treatment notes indicate that episode of endocarditis was successfully treated, and the mitral valve was replaced in August 2002. That is the first, and only, episode of endocarditis of record and occurred in 2001, approximately 55 years after he left active duty service. Moreover, the Veteran has not truly asserted that disability has been manifest since active duty. Therefore, the Board finds that service connection is not warranted based on continuity of symptoms. Moreover, as his endocarditis was not shown within one year of his release from active duty, service connection is also not warranted on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be granted when the evidence establishes a medical nexus between active duty service or a service-connected disability and current complaints. In this case, the Board finds that the weight of the competent evidence does not relate the Veteran's endocarditis to active duty or to his service-connected skin disability. It has been the Veteran's primary contention that his endocarditis may be related to his service-connected basal cell carcinoma. The Board places significant value on the opinion of a VA examiner who evaluated the Veteran's symptoms in January 2013. On that occasion, the Veteran related that he had been hospitalized with bacterial endocarditis in 2002, although other evidence indicates that it was actually 2001, and that blood cultures revealed that the infection was bacteria from his skin. That statement in consistent with an outpatient treatment record from August 2001, which identified the infection as staphylococcus aureus. After a review of the claims file and examination of the Veteran, the examiner provided an opinion in June 2013 that it was less likely than not that the Veteran's endocarditis infection was related to his service-connected skin disability. In providing that opinion, the examiner found that there was no evidence of skin lesions at the time he was treated for that infection. Moreover, while the examiner noted that staphylococcus aureus was a bacterium commonly found on the skin, the mode of entry that led to his sepsis and endocarditis was undetermined. Finally, there was also no evidence that the Veteran's basal cell carcinoma or its treatment was associated with any type of cellulitis or skin infection. While the Board acknowledges that the Veteran's infection is shown to be from a bacteria that is common on the skin, it is the examiner's opinion that there is insufficient evidence to support the conclusion that his basal cell carcinoma was the way this bacteria reached his mitral valve. Therefore, the evidence does not show that it is at least as likely as not that the endocarditis is proximally due to, the result of, or aggravated by the basal cell carcinoma. The Board finds that the examination and opinion was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that any relevant fact was misstated. Moreover, the Veteran has not submitted any evidence to rebut the VA examiner's conclusions. Consideration has also been given to whether the Veteran's endocarditis may be related directly to active duty. In so doing, the Board acknowledges the potential correlation between endocarditis and the Veteran's long-standing mitral valve prolapse and has also considered whether further development is necessary on that issue. However, none of the competent evidence of record indicates a relationship between a cardiovascular disorder of any sort and active duty, nor has any treating professional indicated such a relationship. There was no indication of a cardiovascular disorder in service or for many years thereafter. Therefore, the Board finds that service connection is also not warranted on a direct basis. The Board has also considered the statements made by the Veteran relating his endocarditis to his service-connected skin disability. However, the Veteran is not competent to provide testimony regarding the etiology of endocarditis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Because internal infectious disorders such as endocarditis are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the Veteran's statements, which have not been corroborated by a medical profession, regarding the claimed etiology of the endocarditis are found to lack competency. The Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Veteran has not truly asserted that he experienced cardiovascular symptoms since service. In fact, when he was treated for the infection in July 2001, his mitral valve prolapse had been present for only 12 or 13 years. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for endocarditis. Therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for endocarditis, to include as secondary to a service-connected disability, is denied ____________________________________________ HARVEY P. ROBERTS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs