Citation Nr: 1326745	
Decision Date: 08/21/13    Archive Date: 08/29/13

DOCKET NO.  10-02 792	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for a heart disorder.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

C. Hancock, Counsel

INTRODUCTION

The Veteran had active military service from March 1966 to February 1968. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for a heart disorder (characterized as heart arrhythmia with flutter, shortness of breath).

The Veteran provided testimony at a hearing conducted by a Decision Review Officer at the RO in October 2009.  A transcript of that hearing has been associated with the claims folder.  As part of his January 2010 substantive appeal (see VA Form 9), the Veteran requested to be afforded a hearing in Washington, DC to be conducted by a Veterans Law Judge.  He later cancelled this requested hearing in March 2012. 

The Board, in September 2012, requested that a Veterans Health Administration (VHA) medical nexus opinion be obtained on the issue of causation of the Veteran's claimed heart disorder.  In December 2012, the VHA opinion was incorporated into the record and the Veteran was provided with a copy of the VHA opinion.

The claim was remanded by the Board in April 2013.  The Board is satisfied that there has been substantial compliance with the remand directives and the Board may therefore proceed with appellate review.  D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 


FINDINGS OF FACT

There has been no demonstration by competent medical, or competent and credible lay, evidence of record that the Veteran has a heart disability which is related to active duty.  


CONCLUSION OF LAW

The criteria for service connection for a heart disorder have not been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all of the evidence in the Veteran's claims folder.  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 of record.  Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show.

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Appropriate notice was provided in July 2008.  The claim was subsequently readjudicated in a May 2013 supplemental statement of the case (SSOC).  Mayfield, 444 F.3d at 1333.

The duty to assist the Veteran in the development of the claim has also been met.  VA obtained service treatment records and post-service VA medical treatment records.  Private medical records are also on file.  The Board also finds that the expert medical opinion solicited by the Board via the Veterans Health Administration (VHA) in September 2012 and obtained in December 2012 is adequate, as it was predicated on a review of the claims file and all pertinent evidence of record.  The opinion included adequate medical information/opinions needed to adjudicate the claim and detailed consideration and discussion of the Veteran's service treatment records, as well as post service pertinent medical treatment records.  For these reasons, the Board concludes that VA has fulfilled the duty to assist the appellant in this case.

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

Contentions

As part of a VA Form 21-526, received in June 2008, the Veteran sought service connection for heart disorder, characterized as arrhythmia with flutter and shortness of breath.  He claimed that this began in 1966.  At his October 2009 hearing conducted by a Decision Review Officer at the RO, the Veteran testified he was not aware he had a heart condition prior to entering the military.  He added that during service he was tested by "EKG" (electrocardiogram) every five or six months.  The Veteran also mentioned that he first noticed having heart-related problems during service, such as being limited in the distance he could run or his inability to perform certain physical activities.  

Laws and Regulations

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of the following:  (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table).  

With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the 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.  Id.  When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)).  Cardiovascular renal disease and valvular heart disease are on the list.  

If a veteran served 90 days or more on active duty, service incurrence will be presumed for certain chronic diseases, such as cardiovascular disease, if the disease became manifest to a compensable degree within the year after active service.  38 U.S.C.A. § 1112 ; 38 C.F.R. §§ 3.307(a), 3.309(a).  

In adjudicating a claim, the Board must assess the competence and credibility of the veteran.  See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005).  The Board also has a duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  The Veteran is competent to provide facts about what he experienced; for example, he is competent to report that he engaged in certain activities in service and currently experiences certain symptomatology.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  Competency, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  The Board acknowledges that it cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan, at 1337.  However, such lack of contemporaneous evidence is for consideration in determining credibility.

Factual Background

The service treatment records show that examination of the Veteran's heart in the course of a September 1965 preinduction examination showed the presence of regular "PVC's" (premature ventricular contraction).  No organic heart disease was reported to be present, and the Veteran was found to be qualified for induction.  Later, in September 1966 physical inspection of the Veteran showed that no additional defects were discovered.  An undated radiographic report showed that chest X-ray findings were normal.  The Veteran was noted to be 21 years of age at the time of the X-ray examination (he was born in 1946).  An October 1967 electrocardiographic record includes findings of wandering atrial pacemaker, one premature ventricular contraction seen on the tracing.  The report of medical examination in the course of the Veteran's service separation, dated the same day as the above-discussed October 1967 electrocardiographic record, shows that heart examination findings revealed irregular rhythm, occasional PVC's.  On his October 1967 report of history, the Veteran denied having "palpitation or pounding heart" or "pain or pressure on chest."

The Veteran has stated that, shortly after leaving service, he sought treatment from his family doctor for fatigue and weakness, which was treated with vitamins.  He asserts that these symptoms of tiredness, which sometimes presented as flu-like symptoms, prevented him from holding fulltime employment.  

Post service medical records associated with the Veteran's claims file show that he sought treatment for chest pain in approximately 1994, at which time he was diagnosed with coronary artery disease and a mild myocardial infarction.  He also underwent angioplasty at that time.  In 2004, the Veteran underwent a three vessel bypass grafting, and is shown to have recently developed paroxysmal atrial fibrillation in conjunction with congestive heart failure and ischemic cardiomyopathy.  

The report of an October 2008 VA arrhythmias examination notes that the examiner opined that the Veteran's current symptomatology (he was diagnosed at that time with coronary artery disease with ischemic cardiomyopathy and chronic congestive heart failure) was less likely than not a continuation of that found in service and, rather, more likely due to the Veteran's current coronary artery disease.  The current cardiac arrhythmias were not equivalent to the PVCs shown in service.  While the examiner noted that there was no available medical evidence to show that the in-service PVCs resulted in the Veteran's current cardiac arrhythmia, an opinion was not provided concerning whether any current heart disorder, to include coronary artery disease, was etiologically related to the Veteran's active service.  

A September 2012 VHA medical expert request letter asked for an opinion as to whether, for each diagnosis (coronary artery disease with ischemic cardiomyopathy and chronic congestive heart failures, occasional premature ventricular contractions, and paroxysmal atrial fibrillation/atrial flutter), it was at least as likely as not that the condition was etiologically related to the Veteran's active service.  The opining physician was asked to address the symptomatology noted at service entrance and separation, as well as the Veteran's reports of weakness and tiredness since service.  

The VHA opinion response, provided by a VA Chief of Cardiology, dated in December 2012, shows that the reviewing VA physician recited in detail the cardiac-related related findings contained within the Veteran's service treatment records.  The physician opined that it was less likely as not that the Veteran's ischemic cardiomyopathy and congestive heart failure were etiologically related to his active service.  He noted that PVC's and wandering atrial pacemaker were not specifically related to these diagnoses and were commonly seen in healthy young men without organic heart disease.  He added that no record of specific cardiac complaints or findings were included in the Veteran's service treatment records.   

The VA examiner added that it was less likely as not that PVC's were etiologically related to the Veteran's active service as they were noted on induction.  He added that it was less likely as not that the paroxysmal atrial fibrillation/flutter was etiologically related to the Veteran's active service.  To this, it was noted that "PAF" (paroxysmal atrial fibrillation) was a very common dysrhythmia with multiple etiologies which in this case may be related to the Veteran's ischemic cardiomyopathy.  

Regarding all of the included opinions, the examiner commented that review of the Veteran's admission and separation medical history reports revealed that the Veteran did not complain of cardiac-related symptoms.  He added that weakness and tiredness were nonspecific symptoms which may be related to his cardiomyopathy.

A March 2013 Heart Conditions Disability Benefits Questionnaire, prepared by private physician Dr. L.C.P. includes the following cardiac-related diagnoses:  atherosclerotic cardiovascular disease, congestive heart failure, cardiomyopathy, and atrial fibrillation.  In a March 2013 letter, Dr. L.C.P. noted that the Veteran developed an irregular heart rate during his military service and was treated accordingly.  The Veteran at that time, noted the physician, was having multiple PVCs and cardiac arrhythmias.  He was also noted to have frequent premature ventricular contractions and a history of tachycardia.  During that time the Veteran was reported to have seen cardiologists and multiple specialists.  The physician added that the Veteran was treated approximately two times per year while in the military, at which time electrocardiograms were obtained.  The physician supplied numerous diagnoses, including coronary artery disease, ischemic cardiomyopathy, congestive heart failure, and atrial fibrillation.  He opined that, due to the "fact" that the Veteran's cardiac arrhythmia started and was treated when he was on active duty it was medically related, and the Veteran's coronary disease started while he was on active duty, at which time the Veteran was treated.  

In June 2013 the Veteran supplied, with waiver of initial RO consideration, a May 2013 VA discharge note, which shows he was admitted overnight.  Discharge diagnoses included dyspnea on exertion with ischemic cardiomyopathy, ischemic cardiomyopathy, atrial flutter/fibrillation, and coronary artery disease.

Analysis

While the Veteran has essentially claimed that he has suffered from heart-related problems since his 1968 service separation, the post service treatment records support a finding that he sought treatment many years later in 1994 for chest pain.  None of the medical records on file show that the Veteran was treated for cardiac-related concerns earlier than 1994 following his 1968 service separation.  While continuity of symptomatology, rather than continuity of treatment is the focus, medical records pertaining to cardiac-related treatment dated after 1968 are silent for any reference to such complaints dating to service, or even prior to 1994.  Thus the Board finds the Veteran's assertions of continuous symptoms since service are not credible and places no probative value on those reports.  Caluza v. Brown, 7 Vet. App. 498 (1995).  

The Board finds that the March 2013 medical opinion from Dr. L.C.P. does not support the Veteran's claim.  VA cannot reject a medical opinion simply because it is based on a history supplied by the Veteran and that the critical question is whether that history was accurate.  Kowalski v. Nicholson, 19 Vet. App. 171 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran).  In this case, the Board finds that the March 2013 report supplied from Dr. L.C.P. is entitled to very limited probative value, since while the physician commented that while in the military the Veteran had "multiple PVCs and cardiac arrhythmias," such a finding is not present in his service treatment records.  Likewise, though the physician reported that the Veteran, during his active military service, "saw cardiologists and multiple specialists," the Veteran's service treatment records do not support this observation.  The service treatment records do not support a finding, as mentioned by the physician in March 2013, that the Veteran was examined in-service for heart-related issues "approximately two times a year."  Essentially, the Veteran's reported history - as documented by Dr. L.C.P. in March 2013 -- of in-service heart-related treatment is simply not accurate based on a review of service medical records.  The private physician is not shown to have had an opportunity to review the Veteran's service treatment records.  Thus, the supplied medical opinion by Dr. L.C.P., to the effect that the Veteran's cardiac arrhythmia and coronary disease started while he was on active duty and are in essence related to that service, which rely on this inaccurate history, is not probative and do not support the Veteran's claim.  

By contrast, the Board finds that the December 2012 VHA medical opinion constitutes highly probative evidence against the Veteran's claim.  The opinion is, unlike the one proffered by Dr. L.C.P. in support of the Veteran's claim, based on a review of the Veteran's service treatment records, and is supported by reference to them.  This fact is particularly important, in the Board's judgment, as the reference makes for a more convincing rationale.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Prejean v. West, 13 Vet. App. 444, 448-9 (2000).

The Veteran is competent to provide testimony and statements concerning factual matters of which they have firsthand knowledge (i.e., experiencing or observing relevant symptoms during or after service).  Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005).  Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation.  Davidson; Jandreau.

However, to the extent the Veteran asserts his current cardiac-related problems are due to service, the Board finds that given the particular facts of this case, his condition could have multiple causes and is not a disability for which a lay opinion is competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011).  

Further, the Board finds the assertions by the Veteran as to his claimed in-service treatment regarding heart-related complaints to be less than credible.  See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran).  As noted above, there is no in-service record of treatment or testing for a heart disorder.  

While the Board acknowledges that the absence of any corroborating probative medical evidence supporting the Veteran's assertions, in and of itself, does not render the statements incredible, such absence is for consideration in determining credibility.  See Buchanan, 451 F.3d at 1336 (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible).  The Veteran's service treatment records (containing no relevant complaints, symptoms, findings or diagnoses, and demonstrating that the Veteran consistently denied past or current relevant symptoms) outweigh the contentions by the Veteran.  See report of medical history, completed by Veteran in October 1967.  

Also, as mentioned above, as the Veteran did not have a cardiovascular-related disorder which became manifest to a compensable degree within one year after his active service, service connection cannot be awarded on a presumptive basis pursuant to U.S.C.A. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).  

Thus, the only competent, credible evidence of record is the December 2012 VHA opinion which weighs against the claim.  There is no competent, credible evidence of continuity of symptomatology since service or evidence that service connection can be awarded on a presumptive basis.  Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection, and the benefit of the doubt rule enunciated in 38 U.S.C.A. § 5107(b) is not for application.


ORDER

Entitlement to service connection for a heart disorder is denied.




____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs