Citation Nr: 1327916 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 09-16 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a heart disorder, to include as secondary to service-connected disabilities and medications taken for such disabilities. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to October 1983, February 1987 to February 1990, and July 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In May 2013, the Board remanded the issues of service connection for (1) cervical radiculopathy of the right upper extremity (RUE); (2) a heart disorder; and (3) lumbosacral radiculopathy of the left lower extremity (LLE). Thereafter, a June 2013 rating decision granted service connection for cervical RUE radiculopathy and for lumbosacral LLE radiculopathy, and each was assigned an initial 20 percent rating. This was a full grant of the benefits sought on appeal and, as such, these issues are no longer before the Board. The issue of entitlement to service connection for a heart disorder now returns to the Board for further appellate review. The Board observes that, on his April 2009 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge sitting at the RO. However, in a November 2009 communication, he indicated that he wished to withdraw his hearing request and have his case forwarded to the Board for disposition. 38 C.F.R. § 20.704(e) (2012). The Board further notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file reveals additional treatment records that were considered by the agency of original jurisdiction (AOJ) in the June 2013 supplemental statement of the case. Also, records from the Social Security Administration (SSA) are now on file in the Virtual VA paperless claim system and include information that the Veteran has in the past used another name in his medical records (as now reflected on the title page). The issues of whether new and material evidence has been received to reopen claims for service connection for carpal tunnel syndrome, hypertension, and headaches (service connection was denied for these disorders in an unappealed January 2009 rating decision) and service connection for gastroesophageal reflux disease (GERD) were raised by the Veteran's representative in his April 2013 presentation to the Board. This was noted in the May 2013 Board remand and these matters, not having been adjudicated by the agency of original jurisdiction (AOJ), were referred for appropriate action. However, as yet, no action has been taken and, so, these matters are again referred to the AOJ for appropriate action. FINDING OF FACT For the entire appeal period, the Veteran does not have a current diagnosis of a heart disorder. CONCLUSION OF LAW Service connection for a heart disorder is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Regarding the service connection claim adjudicated herein, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an RO letter was sent to the Veteran in October 2007, prior to the issuance of the unfavorable decision in February 2008, as to the claim for service connection for a heart disorder. That letter advised the Veteran of the evidence and information necessary to substantiate his service connection claim on a direct and secondary basis as well as his and VA's respective responsibilities in obtaining such evidence and information. The notice did not include the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. However, the Veteran was provided with such notice by RO letter of March 2008, which was prior to the readjudication of the claim in the September 2008 statement of the case (SOC) and supplemental SOCs (SSOCs) in March 2009 and June 2013. See Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006) (VA could cure such a timing problem by readjudicating the Veteran's claim following a compliant VCAA notification letter); Prickett v. Nicholson, 20 Vet. App. 370 (2006) (the issuance of a statement of the case could constitute a readjudication of the Veteran's claim). Therefore, any defect with respect to the timing of the VCAA notice has been cured. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The Veteran's service treatment records, post-service VA and private treatment records, and SSA records have been obtained and considered. In this regard, the case was remanded in May 2013, in part, in order to provide the Veteran an opportunity to identify all records relating to his claimed heart disorder, which was accomplished in a letter later in May 2013. However, he has not identified any additional records of post-service treatment for the disability addressed herein. Additionally, that remand resulted in obtaining additional VA treatment records that were associated with the Virtual VA paperless claims processing system. Also obtained, and contained in the Virtual VA paperless claims processing system, were records pertaining to the Veteran's claim for Social Security Administration (SSA) disability benefits. The Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded a VA examination in June 2013 with respect to the issue decided herein. The Board finds that such VA examination and accompanying opinion is adequate to decide the issue as they are predicated on an interview with the Veteran, a review of the record, and a physical examination. The opinion proffered considered all of the pertinent evidence of record, to include the statements of the Veteran and a review of the medical records. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination and opinion regarding the issue decided herein has been met. As indicated previously, the Board remanded the case for additional development in May 2013 in order to afford the Veteran an opportunity to identify any treatment records referable to his heart disorder. In this regard, in a May 2013 letter, he was requested to identify any VA or non-VA healthcare provider who treated him for his heart disorder. In response, the Veteran identified treatment through VA for high blood pressure. Thereafter, VA treatment records dated through May 2013 were obtained and associated with the Veteran's paperless claims file. The May 2013 remand further directed that, after obtaining any outstanding treatment records, the AOJ should review the full record and conduct any additionally indicated development, to include affording the Veteran a VA examination, deemed necessary to decide his claim for service connection for a heart disorder. As such, the Veteran was afforded a VA examination in June 2013 in order to determine whether he has a heart disorder and, if so, the etiology of such disorder. Therefore, the Board finds that the AOJ has substantially complied with the May 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). In sum, VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as cardiovascular-renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). However, 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) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that he has heart disease as a result of his military service, due to stress from pain stemming from his service-connected disabilities, and/or due to medication for his service-connected disabilities, particularly nonsteroidal anti-inflammatory drugs (NSAIDs), such as Flexeril and Methocarbamol. The Veteran's service treatment records are negative for heart disease. Post-service treatment records reflect that the Veteran has dyslipidemia and has taken medication for elevated blood pressure without a formal diagnosis of hypertension and which, at times, was described as labile hypertension. However, there were also notations that his personal medical history includes hypertension. During a July 2007 exercise stress test he had no significant symptoms and no significant arrhythmias or EKG changes. The results were interpreted as being inconclusive. His VA treatment records reflect that he has been prescribed various medications over the years, including Flexeril and Methocarbomal. Also, a December 2012 VA treatment record indicates that the Veteran had a prior medical history of heart disease, but that other clinical records on file do not confirm the existence of such alleged heart disease. On file are articles and information obtained from the Internet concerning various medications. An article indicates that NSAIDs should not be used by those with heart disease. Flexeril should not be used by those in an acute recovery phase of myocardial infarction or who have arrhythmia, heart block, conduction disturbances or congestive heart failure. The side effects of oral administration of Methocarbamol include slow or irregular heartbeat. Information from the Internet suggests that NSAIDs may cause an increased risk of arrhythmia. A report of VA examination by a VA physician in June 2013 reflects that the Veteran was interviewed and the claim file was reviewed. The examiner, after an extensive review of records and following an examination of the Veteran, determined that he did not have any heart condition. The Court has indicated that in the absence of proof of a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The Court has held that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Court recently issued a decision in Romanowsky v. Shinseki, 2013 WL 3455655(July 10, 2013), that found that the Board erred when it did not consider whether the appellant's adjustment disorder, diagnosed prior to the claim period, was extant at the time he filed his claim but had resolved by the time of the later examination. Therefore, the Board will also look to the evidence prior to the claim period. See McClain, 21 Vet. App. at 321 (noting that the "current disability" required for service connection includes a disability at the time of filing or during the pendency of a claim); but see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (stating that "simply because [the Veteran] had a disease or injury while on active service" was insufficient to obtain benefits "[i]n the absence of proof of a present disability"). In the instant case, the claim for service connection for a heart disorder must be denied because the first essential criterion for a grant of service connection-evidence of a current disability upon which to predicate a grant of service connection-has not been met. In this regard, the record is clear that, while it may have been suspected that the Veteran had heart disease, he has never been diagnosed with any form of heart disease or any heart disorder either prior or during the appeal period. The Board observes that heart disease may be diagnoses by several means, including laboratory or clinical studies, e.g., X-rays (which could possibly detected cardiac abnormalities such as hypertrophy (enlargement)). Here, there are no abnormal chest X-rays. Even stress testing, while inconclusive, did not demonstrate the existence of any heard disorder or disease. More to the point, a review of the entire record in June 2013 by a VA physician yielded an informed medical opinion that the Veteran did not have any heart condition. The Veteran, as a layperson, is not competent to diagnose himself with a heart disorder or heart disease based on an examination and/or testing as there is no indication that he has the required expertise to administer the medical examination and/or test or the education or experience to interpret the results. In this regard, the Court has held that, although the Veteran, as a lay person, is competent in certain situations to provide a diagnosis of a simple condition, such as a broken leg or varicose veins, he is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as diagnosing a heart disorder or heart disease is complex in nature, the Board finds that the Veteran is not competent to diagnose such a disorder or disease. Consequently, the Board finds that the Veteran does not have a current diagnosis of a heart disorder or heart disease at the time he filed his claim or at any time during the pendency of his claim. See McClain, supra. In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer, supra. Therefore, the Veteran's claim for service connection for a heart disorder must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a heart disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a heart disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs