Citation Nr: 1326243 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 10-06 985 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a herniated disk, claimed as chronic low back pain. 2. Entitlement to service connection for residuals of an appendectomy. 3. Entitlement to service connection for residuals of rheumatic fever. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for acute myocardial infarction with left ventricular aneurysm, left ventricular dysfunction, mitral regurgitation, and cardiomyopathy, to include as secondary to hypertension. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran now resides in Pennsylvania, so the matter is now handled by the RO in Philadelphia, Pennsylvania. The Veteran requested a hearing before the Board; however, he withdrew his request in October 2012. The issues of entitlement to service connection for hypertension and entitlement to service connection for acute myocardial infarction with left ventricular aneurysm, left ventricular dysfunction, mitral regurgitation, and cardiomyopathy, to include as secondary to hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's herniated disk, claimed as low back pain, is not causally or etiologically due to service. 2. The Veteran's residuals of an appendectomy are not causally or etiologically due to service. 3. The Veteran's residuals of rheumatic fever are not causally or etiologically due to service. CONCLUSIONS OF LAW 1. Service connection for a herniated disk, claimed as low back pain, is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 2. Service connection for residuals of an appendectomy is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 3. Service connection for residuals of rheumatic fever is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in January 2009 that fully addressed all notice elements. The letter informed the Veteran of what evidence was required to substantiate the claims and of the Veteran and VA's respective duties for obtaining evidence. This letter also provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. Therefore, the Board finds that adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records are associated with the claims file, as are post-service private and VA examination and treatment records. The Veteran has asserted that his service treatment records are not associated with the claims file; however, available service treatment records are, in fact, associated with the claims file and there is no evidence that there is any outstanding service records not associated with the file. Virtual VA records were also reviewed. There is no indication that there are any other outstanding pertinent documents or records that have not been obtained or that are not adequately addressed in documents or records contained within the claims folder. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. 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). II. Service Connection Claims The Veteran seeks entitlement to service connection for a herniated disk, claimed as chronic low back pain, residuals of an appendectomy, and residuals of rheumatic fever. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). With chronic diseases shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the disease entity is established, there is no requirement of evidentiary showing of continuity. If the condition noted during service (or in the presumptive period) is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, then generally a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b). In Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit recently limited the applicability of the theory of continuity of symptomatology in service connection claims to those disabilities explicitly recognized as "chronic diseases" in 38 C.F.R. § 3.309(a). Because a herniated disk, rheumatic fever and appendectomy are not specifically listed as chronic diseases under 38 C.F.R. § 3.309(a), the theory of continuity of symptomatology is not for application in the Veteran's claims of service connection. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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 at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). A. Entitlement to Service Connection for a Herniated Disk, Claimed as Chronic Low Back Pain The Veteran seeks entitlement to service connection for a herniated disk, claimed as chronic low back pain. The Veteran's available service records were reviewed. Examinations from August 1963, November 1965, and January 1967, did not note any spinal abnormalities. There were no complaints, treatments, or diagnosis of lower back problems during service. Post-service, in November 2008, it was noted that the Veteran had chronic low back pain secondary to a herniated disk. The Veteran's lay statements in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Veteran clearly believes that he has a low back disorder as a result of his time in service, as a layperson without any medical training and expertise, he is not qualified to render a medical opinion regarding the etiology of his low back disorder, which the Board notes is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). The Veteran was not afforded a VA examination because while there is evidence of a current disorder, there is no evidence establishing the disorder manifested during an applicable presumption period, and there is no indication that the disorder may be associated with the Veteran's service or with another service-connected disability. Therefore, a VA medical examination is not required. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Importantly, the Veteran has not offered any account of an injury to his low back during service nor has he offered any statements relating his current back disorder to his time in service, other than to file a claim for service connection. Furthermore, service treatment records do not include any complaints, treatment, or diagnoses of a back disorder. Finally, no current medical professional has indicated there is a possible relationship between the Veteran's current disorder and his time in service. The Board does not dispute the fact that the Veteran has a current diagnosis of chronic low back pain secondary to a herniated disk. However, there is simply no evidence indicating that the Veteran's current back disorder is causally or etiologically due to service. In summary, there is no evidence in favor of the Veteran's claim for service connection. See 38 C.F.R. §§ 3.303, 3.307(a)(3), and 3.309(a). As the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. B. Entitlement to Service Connection for Residuals of an Appendectomy The Veteran seeks entitlement to service connection for residuals of an appendectomy. The Veteran's available service records were reviewed. Examinations from August 1963, November 1965, and January 1967, did not note any appendectomy surgery. There were no complaints, treatments, or diagnosis of appendicitis during service. Post-service, in July 2007, the Veteran underwent heart surgery for an acute myocardial infarction. It was noted that he had a secondary diagnosis of appendectomy. In September 2008, a computed tomography (CT) scan was completed due to a complaint of left flank pain for one week. It was noted that the appendix was not definitely seen. Treatment records do not include any complaints of residuals of an appendectomy. Although the Veteran complained of left flank pain in September 2008, there is no indication that it was due to appendicitis or a residual of his appendectomy. The Veteran's lay statements in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Veteran clearly believes that he has residuals of an appendectomy as a result of his time in service, as a layperson without any medical training and expertise, he is not qualified to render a medical opinion regarding the etiology of residuals of an appendectomy, which the Board notes is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). The Veteran was not afforded a VA examination because while there is evidence that the Veteran has a history of an appendectomy, there is no evidence clearly indicating that any current residual exists as a result of the surgery, there is no evidence establishing the disorder manifested during an applicable presumption period, and there is no indication that the disorder may be associated with the Veteran's service or with another service-connected disability. Therefore, a VA medical examination is not required. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Importantly, the Veteran has not asserted that he underwent an appendectomy during service nor has he offered any statements relating any current residuals of an appendectomy to his time in service, other than to file a claim for service connection. The Veteran has not described the symptoms of his residuals of appendectomy. Furthermore, service treatment records do not include any complaints, treatment, or diagnoses of appendicitis or an appendectomy. Additionally, no current medical professional has indicated there is a relationship between the Veteran's appendectomy, any current residuals, and his time in service. The Board does not dispute the fact that the Veteran has a history of an appendectomy. However, there is simply no evidence indicating that the Veteran's appendectomy or any current residuals are causally or etiologically due to service. In summary, there is no evidence in favor of the Veteran's claim for service connection on either a presumptive or a direct basis. See 38 C.F.R. §§ 3.303, 3.307(a)(3), and 3.309(a). As the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. C. Entitlement to Service Connection for Residuals of Rheumatic Fever The Veteran seeks entitlement to service connection for residuals of rheumatic fever. Available service records were reviewed. Examinations from August 1963, November 1965, and January 1967, did not note any residuals of rheumatic fever. A September 1963 note reported that the Veteran had rheumatic fever at age 9 or 10; however, the Veteran was found to be physically qualified to perform active duty on every examination during service. There were no complaints, treatments, or diagnosis of residuals of rheumatic fever during service. Post-service, in July 2007, it was noted that the Veteran had a history of rheumatic fever. Medical records do not contain any notations of residuals that are due to the Veteran's rheumatic fever. The Board notes that the Veteran does currently suffer from heart disorders; however, these disorders are addressed in a separate claim. The Veteran's lay statements in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Veteran clearly believes that he has residuals of rheumatic fever as a result of his time in service, as a layperson without any medical training and expertise, he is not qualified to render a medical opinion regarding the etiology of residuals of rheumatic fever, which the Board notes is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). The Veteran was not afforded a VA examination because while there is evidence of a history of rheumatic fever, there is no evidence establishing the disorder manifested during an applicable presumption period, and there is no indication that the disorder may be associated with the Veteran's service or with another service-connected disability. Therefore, a VA medical examination is not required. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Importantly, service treatment records do not include any complaints, treatment, or diagnoses of residuals of rheumatic fever. Additionally, no current medical professional has indicated there is a relationship between any current residuals of rheumatic fever and the Veteran's time in service. The Board does not dispute the fact that the Veteran has a history of rheumatic fever. However, there is simply no evidence indicating that any current residual of rheumatic fever is causally or etiologically due to service. In summary, there is no evidence in favor of the Veteran's claim for service connection on either a presumptive or a direct basis. See 38 C.F.R. §§ 3.303, 3.307(a)(3), and 3.309(a). As the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the appeal is denied. ORDER Entitlement to service connection for a herniated disk, claimed as chronic low back pain, is denied. Entitlement to service connection for residuals of an appendectomy is denied. Entitlement to service connection for residuals of rheumatic fever is denied. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claims. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA has a duty to assist a claimant in obtaining evidence, including the procurement of pertinent records and providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The Veteran seeks entitlement to service connection for hypertension. According to the National Institutes of Health and the National Heart, Lung and Blood Institute, normal blood pressure is a systolic reading of less than 120 or a diastolic reading of less than 80. Prehypertension is classified as a systolic reading between 120-139 or a diastolic of 80-89. Stage one hypertension is a systolic of 140-159 or a diastolic of 90-99 and stage two hypertension is a systolic of 160 or a diastolic greater than or equal to 100. "Prevention, Detection, Evaluation, and Treatment of High Blood Pressure," National Institute of Health, National Heart, Lung, and Blood Institute (2003). The Veteran's entrance examination in August 1963 noted a blood pressure of 134/62, and did not note any history of hypertension. This blood pressure is considered prehypertension. During a November 1965 examination, his blood pressure was recorded as 130/78, and during his separation examination in January 1967, his blood pressure was 130/80. These readings are all considered prehypertensive. Post-service records indicate the Veteran is currently taking medication for hypertension. To date, however, the Veteran has not yet been afforded a VA examination for hypertension. A remand is required in order to afford the Veteran a VA examination and to obtain a medical opinion regarding the nature and etiology of his hypertension. The Veteran also seeks entitlement to service connection for acute myocardial infarction with left ventricular aneurysm, left ventricular dysfunction, mitral regurgitation, to include as secondary to hypertension. As this claim is inexplicably intertwined with the claim for entitlement to service connection for hypertension, the Board finds that a decision on this issue should be postponed until it is determined if service connection is warranted for the Veteran's hypertension. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). However, it is important to note that a medical opinion regarding whether the Veteran's heart disorder is proximately due to or aggravated by his hypertension must be obtained. Any updated treatment records should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file all updated treatment records. 2. Afford the Veteran an in-person VA examination for his hypertension and heart disorder. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. For each diagnosed disorder, the examiner is requested to review all pertinent records associated with the claims file and offer comments and an opinion addressing whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that: a) the currently diagnosed hypertension is causally or etiologically due to service or was manifested within one year of discharge from service; and, b) the currently diagnosed heart disorder is causally or etiologically due to service or was manifested within one year of discharge from service; and, c) the currently diagnosed heart disorder is proximately due to OR aggravated (a permanent increase in severity beyond natural progress) by his hypertension. In doing so, the examiner must acknowledge symptoms experienced during and after discharge from service, and discuss lay as well as medical evidence of a continuity of symptomatology. The examiner must offer comments and an opinion on the service treatment records indicative of prehypertensive blood pressure readings. In particular, review the lay statements as they relate to the development of the Veteran's disorders and provide information as to how the statements comport with generally accepted medical norms. The claims folder must be provided to the examiner for review. The examiner must state in the examination report that the claims folder has been reviewed. If it is not possible to provide the requested opinion without resort to speculation, the examiner should state why speculation would be required in this case (e.g., if the requested determination is beyond the scope of current medical knowledge, actual causation cannot be selected from multiple potential causes, etc.). If there are insufficient facts or data within the claims file, the examiner should identify the relevant testing, specialist's opinion or other information needed to provide the requested opinion. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved is required. 3. The Veteran is hereby notified that it is his responsibility to report for the examinations scheduled in connection with this REMAND and to cooperate in the development of his case. 4. After all of the above actions have been completed, readjudicate the claims. If the claims remain denied, issue to the Veteran a supplemental statement of the case, and afford the appropriate period of time within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs