Citation Nr: 1325330 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 04-30 846 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for coronary artery disease with angina pectoris, unstable angina, atherosclerotic heart, and unstable hypertension, status post multiple and coronary artery bypass surgery. ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from September 1971 through March 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Veteran was afforded a Decision Review Officer hearing in June 2008 and a transcript of this proceeding has been prepared and incorporated into the evidence of record. This appeal was previously before the Board in December 2005, May 2010, and August 2012. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). In the most recent August 2012 Board remand the Board noted that, based upon a September 2011 statement by the Veteran, it was unclear whether he was requesting the assistance of a representative in his appeal. In September 2012 correspondence the RO asked the Veteran to clarify whether he desired the assistance of a representative in his appeal. In October 2012 correspondence the Veteran wrote that he did not have a representative. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals VA treatment records dated from October 2011 through October 2012 which were considered by the RO in the most recent January 2013 supplemental statement of the case. The remainder of the documents in the Virtual VA paperless claims file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT 1. Service personnel records do not show and the Veteran does not contend that he served in or visited the Republic of Vietnam during military service; therefore, exposure to herbicides may not be presumed. 2. The Veteran's current heart disorders did not exist prior to military service, and did not develop within one year after service; there is no competent medical evidence linking the Veteran's current heart disorders with his military service. CONCLUSION OF LAW Service connection for coronary artery disease with angina pectoris, unstable angina, atherosclerotic heart, and unstable hypertension, status post multiple and coronary artery bypass surgery is not established. 38 U.S.C.A. §§ 1110, 1153 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION This appeal arises out of the Veteran's claim that his current heart disorders are related to his service with the United States Army from September 1971 to March 1972. Specifically, he contends that he suffered from heart problems prior to service and that these conditions were aggravated by his military service. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, certain chronic diseases such as hypertension may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.307, 3.309. Disorders diagnosed more than one year after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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, 492 F.3d at 1372. A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain specified disorders, including ischemic heart disease (also known as coronary artery disease). 38 C.F.R. § 3.309(e). For purposes of service connection pursuant to § 1110 and § 1131, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § § 1111 and 1132. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. §§ 3.304, 3.306. The burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. Analysis The Veteran's service treatment records contain a January 1969 pre-service private medical report showing an impression of "L.V.H. is probable" (i.e., left ventricular probable). However, the Veteran's September 1971 preinduction examination shows a normal heart and in a September 1971 report of medical history the Veteran denied "chest pain or oppression," "palpitations," and "high or low blood pressure." In October 1971 the Veteran was treated for "hyperventilation syndrome." In November 1971 the Veteran complained of sharp left chest pain and reported a history of chest pain for three years. An electrocardiogram was performed in November 1971 which shows that ST elevation was most likely normal and represented early polarization. However, it was noted that pericarditis could not be ruled out with certainty. No separation examination is of record. The first evidence of heart problems after service is dated in March 1995. Specifically, a March 1995 private treatment record shows that the Veteran was hospitalized at St. Luke's Episcopal Hospital in Ponce, Puerto Rico. At that time he was given a provisional diagnosis of unstable angina with a secondary diagnosis of dizzy spells. Subsequently, in September 2001 the Veteran reported a history of chest palpitations for one week. He denied any known cardiac history but indicated that in 1999 he had an exercise stress test showing positive at high level. The impression was hypertension, hyperlipidemia, and R/O (rule out) ischemia. In May 2003 the Veteran reported that he had been hospitalized due to an episode of chest pain and a July 2003 private operative report shows that the Veteran underwent coronary artery bypass times three due to coronary artery disease. In September 2003 the Veteran submitted a claim for service connection for a heart condition, noting that his heart problems began in 1971. In connection with his claim he was afforded a VA heart examination in November 2003. The Veteran was diagnosed with atherosclerotic heart disease with angina pectoris as well as multiple vessel coronary artery disease, status post angioplasty times two, status post coronary artery bypass graft times three, normal left ventricular function, METs (metabolic equivalent task). The November 2003 VA examiner did not provide an opinion as to whether the Veteran's current heart disorders were related to his military service. By rating decision dated in December 2003 the RO denied service connection for coronary artery disease with angina pectoris, unstable angina, atherosclerotic heart, and unstable hypertension, status post multiple and coronary artery bypass surgery. This decision was confirmed by rating decision dated in February 2004. Subsequently, the Veteran perfected an appeal of these decisions. In December 2005 the Board remanded this case to obtain a medical opinion as to whether his current heart disorder was caused or aggravated by his military service as well as to obtain outstanding treatment records. In response to the December 2005 Board remand the Veteran was afforded another VA heart examination in October 2006. The examiner reviewed copies of the service treatment records provided by the Veteran, and diagnosed the Veteran with coronary artery disease secondary to coronary ischemic heart disease as well as unstable angina. The examiner also indicated that the medical evidence provided was not sufficient to determine whether the Veteran's current heart disorders began in service or are in any way related to his military service. Therefore, the examiner indicated that he could not resolve the issue without resort to mere speculation. In May 2010 the Board remanded this case a second time. Notably, the Board found that the October 2006 VA examiner only discussed review of documents provided by the Veteran, and did not discuss review of the official service treatment records included in the Veteran's claims files. The Board also found that there were outstanding treatment records in the case. In response to the May 2010 Board remand the Veteran was afforded a third VA heart examination in May 2011. During the May 2011 VA examination the Veteran reported that he was a boxer prior to service, for which he had a yearly physical examination, which was reportedly normal every year. He decided to join the Army and, while in service, he began to experience chest pain episodes, mostly during extreme exercise or at rest. He also reported having elevated blood pressure. He claimed that he visited sick call on several occasions. The Veteran reported that, during the short time he was in the Army, he was on his way to having a successful career, receiving certificates of good standing for his excellent performance. Shortly thereafter, the Veteran claimed that he was visited by an Army officer and "tricked" into signing a document that his heart disorder "pre existed" his military service. The Veteran reported that he was treated for chest pain episodes as early as two years after discharge from service. Specifically, he reported that he was hospitalized in 1974 due to rheumatic fever when he was experiencing severe leg edema. He was reportedly referred to a private cardiologist and underwent an echocardiogram but he did not recall the results. He also reported having a syncope in 1981, evaluated and admitted at a private hospital, and found to have elevated blood pressure, but he did not recall the details. The Veteran claimed that during all of these years he continued to experience the same chest pain episodes. The Veteran indicated that he returned to Puerto Rico in 1986. He was diagnosed with hypertension in 1994 and had a heart attack in 1995. He reportedly underwent cardiac catheterization which revealed coronary artery disease and was treated with medications. In 2003 he had another heart attack and had two stents placed in his heart. In July 2003 he experienced a third heart attack at which time he underwent another cardiac catheterization and open heart surgery. In December 2003 he had a fourth heart attack. Since 2003 the Veteran reported several hospitalizations for his heart problems, most recently in March 2010. Upon review of the claims file and examination of the Veteran the examiner diagnosed the Veteran with severe coronary artery disease, status post multiple stent placements, status post coronary artery bypass graft times three, and old myocardial infarction. The examiner indicated that he carefully reviewed the claims file, including pre-service documents, copies of private medical records, and the prior Board remands. It was noted that a cardiac board (case presentation and discussion) was convened with an SJVA cardiologist. The examiner noted the pre-service January 1969 EKG showing "probable" LVH but ultimately found that the January 1969 EKG did not meet the criteria for a diagnosis of LVH. The examiner noted that the Veteran's September 1971 enlistment examination was silent for any disease. The examiner also noted that the Veteran denied a history of a heart condition prior to his military service. As such, the examiner concluded that it was not likely that the Veteran incurred or manifested a cardiac condition prior to active service. The examiner also reviewed the November 1971 in-service EKG noting early repolarization and pericarditis. The examiner indicated that early repolarization is a normal variant, not a pathological condition, and very common in young age. The examiner also indicated that pericarditis is a common disorder with most cases of viral etiology and without major sequelae. The examiner also noted the November 1971 service treatment record showing complaints of "left chest pain at rest of exercises lasting 5-10min. Problem for 3 years." So, in view of the above facts, the examiner opined that the Veteran's episode of chest pain at 19 years old reported in service (that he reportedly had for the last three years), was more likely of non cardiac origin (musculoskeletal). The examiner also reviewed the post-service medical evidence showing heart problems as early as 1994 and opined that the Veteran's current heart disorder, diagnosed in 2003 with cardiac catheterization (30 years after service), was not likely related to the chest pain episode reported during military service. Initially, the Board finds that while the Veteran served during the "Vietnam Era" (i.e., from January 9, 1962 through May 7, 1975) and ischemic heart disease is known to be caused by exposure to herbicides, the Veteran's service treatment records are negative for any foreign service and the Veteran does not contend that he served in Vietnam. Specifically, in September 2011 correspondence the Veteran wrote that he did not have any Vietnam service. Thus, the Veteran is not entitled to the presumption under 38 C.F.R. § 3.307. Throughout the course of this appeal the Veteran has argued that his current heart problems pre-existed military service and were aggravated by his military service. As above, to rebut the presumption of sound condition under 38 U.S.C. § 1110, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. There is no clear and unmistakable evidence that a heart disorder preexisted service. As above, the May 2011 VA examiner noted the pre-service January 1969 EKG showing "probable" LVH but ultimately found that the January 1969 EKG did not meet the criteria for a diagnosis of LVH. The examiner also noted that the Veteran's September 1971 enlistment examination was silent for any disease and noted that the examiner the Veteran denied a history of a heart condition prior to his military service. As such, the examiner concluded that it was not likely that the Veteran incurred or manifested a cardiac condition prior to active service. As there is no clear and unmistakable evidence demonstrating that the Veteran's heart disorders existed prior to military service, the presumption of soundness has not been rebutted and continues to attach in this case. See Crowe v. Brown, 7 Vet. App. 238 (1994). The Board finds that the preponderance of the evidence is against service connection for a heart disorder. First, there is no evidence of a heart disorder in service or within one year after service. As above, the May 2011 VA examiner reviewed the November 1971 in-service EKG noting early repolarization and pericarditis and indicated that early repolarization is a normal variant, not a pathological condition, and very common in young age and that pericarditis is a common disorder with most cases of viral etiology and without major sequelae. The examiner also noted the November 1971 service treatment record showing complaints of "left chest pain at rest of exercises lasting 5-10min. Problem for 3 years" and opined that the Veteran's episode of chest pain at 19 years old reported in service was more likely of non cardiac origin (musculoskeletal). Furthermore, there is no evidence of a heart disorder until at least 1994, approximately 22 years after service. While the Veteran contends that he was hospitalized in 1974 due to rheumatic fever and subsequently treated for syncope in 1981 and found to have elevated blood pressure, there are no medical records documenting such treatment. Moreover, even if there were medical records documenting such treatment, it appears that the May 2011 VA examiner considered and assumed the validity of such allegations when making his opinion that the Veteran's current heart disorder, diagnosed in 2003 with cardiac catheterization (30 years after service), was not likely related to the chest pain episode reported during military service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). Additionally, both incidents occurred more than one year after service and three year presumption under 38 C.F.R. §3.309. Finally, as above, there is no medical evidence in the record that links any current heart disorder to an incident of the Veteran's active military service. Furthermore, the Board finds a lack of a continuity of symptomatology between the Veteran's active duty service and the first documented treatment for a heart disorder in March 1995. A layperson is competent to testify in regard to the onset and continuity of symptomatology. See Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995). While the Veteran is competent to report that he has been experiencing chest pain since service, he is not competent to relate any current heart problem to his military service, as he is not shown to have the specialized medical knowledge, training, or experience to provide such evidence. See e.g., Jones v. West, 12 Vet. App. 460, 465 (1999). Here, any statements as to continuous heart problems since service are not found to be persuasive in light of the fact that the Veteran's November 1971 EKG is generally normal and in light of the fact that there is no confirmation of an actual heart disorder until 22 years after service. The Board finds the Veteran's contemporaneous in-service history and findings at separation along with the absence of complaints or treatment for many years after service outweigh his current statements regarding continuity of symptomatology. For these reasons, continuity of symptomatology has not here been established, either through the medical evidence or through the Veteran's statements. As there is no medical evidence that the Veteran's current heart disorder is related to his military service, his claim for service connection must be denied. Notice and Assistance The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). This 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). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, this information must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VA informed the Veteran of VA's duty to assist him in the development of evidence pertinent to his service connection claim in a letter dated in October 2003, wherein he was advised of the provisions relating to the VCAA. Specifically, he was informed of the evidence and information necessary to substantiate his service connection claim. Additionally, the Veteran was advised that VA would assist him with obtaining relevant records from any Federal agency, which may include medical records from the military, from VA hospitals (including private facilities where VA authorized treatment), or from the Social Security Administration. With respect to private treatment records, the letter informed the Veteran that VA would make reasonable efforts to obtain private or non-Federal medical records, to include records from State or local governments, private doctors and hospitals, or current or former employers. Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the Veteran could complete to release private medical records to VA. The Veteran was also provided with notice of the type of evidence necessary to establish a disability rating and effective date as was discussed in the Dingess case in a May 2010 letter. Adjudication of the claim on appeal was undertaken in a December 2003 rating decision, a statement of the case (SOC) issued in August 2004, and supplemental statements of the case issued in May 2009, March 2012, and January 2013. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's June 2008 RO hearing, the Decision Review Officer identified the issue on appeal and asked the Veteran about any treatment for this disability, why the Veteran thought that the disability was related to his military service, and whether any medical professional had provided an opinion as to the etiology of the disability to ensure that all relevant records were obtained. The Veteran provided testimony as to the symptoms and history of his disability, thereby demonstrating actual knowledge of the ability to identify and submit additional relevant evidence. Further, he was provided with notice of the information and evidence that is necessary to substantiate his claim in the October 2003 and May 2010 letters. Also, the Board subsequently remanded the claims to obtain additional evidence (i.e. private treatment records) suggested by the hearing testimony. The duties imposed by Bryant were thereby met. Relevant to the duty to assist, the Veteran's available service treatment records as well as post-service VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA examinations in November 2003, October 2006, and May 2011. As was discussed above, while the November 2003 and October 2006 examinations were inadequate as they did not consider all of the pertinent available records and did not provide the necessary medical opinions in this case, the May 2011 VA examination report is adequate as it addressed all relevant evidence and provided a well reasoned explanation in support of the necessary medical opinions required in this case. In December 2005, May 2010, and August 2012, the Board remanded the case for additional development, to include obtaining outstanding VA and private treatment records, obtaining an adequate VA medical examination, and asking the Veteran to clarify whether he desired representation. Such was accomplished prior to readjudication of the case in a January 2013 supplemental statement of the case. Therefore, the Board finds that the AOJ has substantially complied with the prior remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Accordingly, VA has satisfied the notification and duty to assist provisions of the VCAA and no further actions need be undertaken on the appellant's behalf. See 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c)-(e). 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). Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of the claims. 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). ORDER Service connection for coronary artery disease with angina pectoris, unstable angina, atherosclerotic heart, and unstable hypertension, status post multiple and coronary artery bypass surgery is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs