Citation Nr: 1327058	
Decision Date: 08/23/13    Archive Date: 08/29/13

DOCKET NO.  08-30 060	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for a disability exhibited by mitral valve prolapse.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bridgid D. Cleary, Counsel


INTRODUCTION

The Veteran served on active duty from December 1965 to September 1967.

This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the New Orleans, Louisiana, Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in December 2010.  A transcript of the hearing is associated with the claims file.

In February 2011, the Board remanded this case for further development.


FINDING OF FACT

A disability exhibited by mitral valve prolapse did not have its clinical onset in service and is not otherwise related to active duty; a cardiovascular disease, including endocarditis was not exhibited within the first post service year.  


CONCLUSION OF LAW

A disability exhibited by mitral valve prolapse was not incurred or aggravated in service, and a cardiovascular disease, including endocarditis may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

VCAA 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).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in October 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.

These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service.  The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In this case, the service treatment records are silent as to any complaints or treatment for mitral valve prolapse or any heart complaints.  Moreover, the post-service evidence does not indicate any diagnosis, complaints, or treatment for mitral valve prolapse until several years following separation.  Furthermore, the record contains no competent evidence suggesting a causal relationship between the current disability and active service.  For all of these reasons, the evidence does not indicate that the claimed disability may be related to active service such as to require an examination, even under the low threshold of McLendon.

The Board finds that 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).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a December 2010 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

In compliance with the Board's February 2011 remand, VA sought and obtained additional records from the Ochsner Clinic Foundation.  These records have been associated with the claims folder..  Thus VA has complied with the February 2011 remand instructions.  Stegall v. West, 11 Vet. App. 268 (1998).

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) 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).

At the hearing the undersigned identified the issue, sought information as to the onset of the claimed disability, and sought information as to treatment to determine whether all relevant records had been obtained.  Ultimately the claim was remanded for additional records.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with these duties; they have not identified any prejudice in the conduct of the Board hearing.

For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim.  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).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.

As a chronic disease, endocarditis, including all forms of valvular heart disease, would be entitled to presumptive service connection if the disease became manifest to a degree of ten percent or more within one year of separation from service or was shown in service and at any time thereafter.  38 U.S.C.A. §§ 1112(a), 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.  A compensable degree of endocarditis would require a finding that a workload of greater than 7 METs but not greater than 10 METs resulted in dyspnea, fatigue, angina, dizziness, syncope, or that continuous medication is required.  38 C.F.R. § 4.104, Diagnostic Code 7001.  In this case, disability exhibited by mitral valve prolapse was not diagnosed during service or within one year of the Veteran's separation.  Instead, the first record of a heart condition is a diagnosis of mitral valve prolapse in October 1983.  See Ochsner Clinic record dated October 1983 and Summary Sheet.  The lone earlier cardiac notation from October 1970 read, "regular widely split 2nd [sound] but physiologic."  Earlier treatment records from this clinic, dating back to October 1970, do not show earlier treatment for or diagnosis of this condition.  See Ochsner Clinic records dated October 1970 to July 2011.  Therefore, presumptive service connection is not warranted for endocarditis.

Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, the claim still can be reviewed to determine if service connection can be established on a direct basis.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation).

Direct service connection requires competent and credible evidence of a current disability; competent and credible evidence of an in-service occurrence or aggravation of a disease or injury; and a nexus between the in-service injury and the Veteran's current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Alternately, service connection can be established upon a finding of continuity of symptomatology.  38 C.F.R. § 3.303(b).

The record shows a history of mitral valve prolapse.  See generally, Ochsner Clinic records.  The Veteran testified that he had no recent tests or treatment for this disability.  Similarly, there is no indication that this condition has resolved.  Therefore, the Board finds that the current disability requirement is satisfied.

In this case, the Veteran's service treatment records are silent with regard to mitral valve prolapse or any cardiovascular condition.  At the time of his September 1967 separation examination, the Veteran's heart was found to be normal.  In the accompanying Report of Medical History, the Veteran denied dizziness or fainting spells, shortness of breath, pain or pressure in chest, and palpitation or pounding heart.  Moreover, at the time of his December 2010 hearing, the Veteran testified that his first indication that he had a heart condition was when he applied for employment, stating that he was then diagnosed with mitral valve prolapse.  He also testified that his symptoms started "[p]robably a year or two after I got out of the military."  Thus, the record does not show an in-service onset of this condition or any in-service injury that can be retroactively associated with it.

To the extent that the Veteran himself believes disability exhibited by mitral valve prolapse was due to his military service, the Board acknowledges Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.  Here, however, the Veteran claims that symptoms of fatigue starting 1 or 2 years after service or when he began a post service job (about 3 years after service) represent the onset of disability exhibited by mitral valve prolapse.  There is no in-service incident identified to which the Veteran can relate his current disability.  Even if the Veteran had symptoms 1-3 years after service, this would not be enough to even suggest that disability exhibited by mitral valve prolapse had its onset in service or that cardiovascular disease was manifested to a compensable degree within the first post service year.  The Veteran is not competent to address etiology in the present case.  Thus, there is no competent and credible nexus evidence establishing a connection between the Veteran's mitral valve prolapse and his military service.
	
Service connection for may be established by a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service.  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991); see also 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013) (holding that the theory of continuity of symptomatology can be used only in cases involving those conditions, such as arthritis, explicitly recognized as chronic under 38 C.F.R. § 3.309(a)).  In this case, the record does not show treatment for or a diagnosis of this disability until October 1983.  Nevertheless, a layperson, such as the Veteran, is competent to report on the onset and continuity of observable symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  In this case, the Veteran's testimony suggests an onset of symptoms "a year or two" after service, not continuous symptoms since service.  Similarly, the Veteran has related the onset of his symptoms to his employment with Ochsner, which is noted to have begun in June 1970, nearly three years after his separation.  See Ochsner Clinic record dated October 1970.  Furthermore, there is no record of symptoms such as dyspnea, fatigue, angina, dizziness, or syncope prior to the October 1983 diagnosis.  In this way, neither the medical evidence of record nor the lay evidence provided by the Veteran suggests a continuity of symptomatology between the Veteran's disability exhibited by mitral valve prolapse and his military service.

In conclusion, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against service connection for a disability exhibited by mitral valve prolapse.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).


ORDER

Service connection for a disability exhibited by mitral valve prolapse is denied.




____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs