Citation Nr: 1328200 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 02-20 121A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran, his spouse and R. B., M.D. ATTORNEY FOR THE BOARD Terrence T. Griffin, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c) (2012), the appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from October 1946 to March 1948. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2002 decision of the Montgomery, Alabama, Regional Office (RO). The November 2002 RO decision declined to reopen the claim for a heart disability; however, the Board reopened the service connection claim in October 2004. In August 2004, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. The Board remanded the appeal in October 2004 and October 2009. In February 2013, in accordance with 38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901 (2012), the Board obtained a medical expert opinion from the Veterans Health Administration (VHA). The Veteran and his representative were provided a copy of the opinion and afforded the opportunity to submit additional evidence and argument, which the Veteran's representative did in August 2013. FINDING OF FACT A heart disability was not shown to have been present in service; was first documented more than one year after service; and is unrelated to an injury, disease or event in service. CONCLUSION OF LAW The criteria to establish service connection for a heart disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to assist and notify 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). November 2001, December 2003, March 2006, June 2009, July 2010, January 2012 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The claim was subsequently readjudicated, most recently in an October 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 556 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any further private/VA treatment records pertinent to the appeal VA should seek to obtain on his behalf. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA made efforts to obtain the records related to the Veteran's disability benefits from the Social Security Administration, but, as documented in an August 2009 formal finding, the records are unavailable and further attempts to obtain the records would be futile. 38 C.F.R. § 3.159(c)(2). A February 2012 VA examination was conducted and an opinion was obtained but the examination and opinion are inadequate for rating purposes; however, the Veteran need not be provided another examination because the record was supplemented with a VHA expert medical opinion. 38 C.F.R. §§ 3.159(c)(4), 20.901; Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The April 2013 VHA expert report and opinion are adequate to make a fully informed assessment of the appeal. The record does not indicate that there is any additional evidence, relevant to the issue decided, that is available and not part of the claim file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thus, there is no evidence that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case; the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486. Heart disability Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset and continuity of his current 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). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. 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); see also Jandreau, supra. Service treatment records document the Veteran's hospitalization from May 1947 to December 1947 for what was his then diagnosis of rheumatic fever. Records generated during this period are absent of any abnormal cardiac/heart examination finding, including May 1947, September 1947, and December 1947 electrocardiograph (EKG) reports. In December 1947, a physical condition report indicates that the Veteran was returned to full duty without restriction. Aside from rheumatic fever, there is no evidence of any in-service cardiac/heart treatment, complaint, or diagnosis. The respective November 1987 and July 1989 statements of private physician J. Quimby, M.D., confirm the Veteran's treatment for cardiac/heart diagnoses for approximately 29 years and opine that the Veteran's diagnosed cardiac/heart disabilities are related to the in-service diagnosis of rheumatic fever and its residuals. In a November 1987 statement, private physician J. Culpepper, D.O., details treating the Veteran because of "fatigue and arthritic type pain which [the Veteran] attributes to having had rheumatic fever in 1947 [to] 1948." Dr. Culpepper indicates a review of relevant medical records, reports current examination findings, and, states the Veteran's cardiac/heart disability is "most likely from having rheumatic fever while in the military and I believe that this problem needs to be further investigated." In March 1988 the Veteran presented to private hospital for, and the discharge record details, his cardiac symptomatology and his account of "fever, arthralgias, and rash along with shortness of breath, which occurred in 1947 [that he] was later told...[was not] rheumatic heart disease." The Veteran underwent a heart catherization; and had diagnoses of chest pain with insignificant coronary artery disease, hypertension, a somatization disorder, and chronic hearing loss. VA examinations performed in September 1989 and September 2002 detail the Veteran's account of cardiac/heart symptomatology and confirm currently diagnosed cardiac/heart disabilities, but do not provide any medical opinions. Private physician R. Bloome, D.O., provided a September 2001 statement that, based on the medical evidence and examination reports, the Veteran was misdiagnosed with Rheumatic Fever, when he was in the service and the correct diagnosis [of] [adult-onset Still's disease] had its onset while he was in the service in May 1947. This would be the only explanation for his signs and symptoms all these years. The Board obtained an April 2013 Veterans Health Administration (VHA) opinion from an appropriately qualified VA medical expert (expert). The expert extensively detailed the Veteran's account of cardiac/heart symptomatology, service and post-service medical findings, and the variously diagnosed cardiac/heart disabilities. The expert also stated the evidence failed to support any finding that the in-service diagnosis of rheumatic fever was warranted, but did support a diagnosis of adult-onset Still's disease. As to each diagnosed disability, the expert respectively opined that the disability was not likely related to military service, or caused or aggravated by a service-connected disability, given the evidence and the expert's relevant expertise. Merits The Veteran has provided a competent account of his symptoms; however, he lacks the requisite training and expertise and is not competent to provide an etiological opinion or diagnose a cardiac/heart disability. Service treatment records are negative for any accurate cardiac/heart disability diagnosis. The September 2001 statement and August 2004 Board testimony of, Dr. Bloome provides competent, credible and highly probative evidence that the Veteran's in-service diagnosis of rheumatic fever was incorrect and no cardiac/heart diagnosis was warranted. This opinion was not only based on Dr. Bloome's medical expertise but also the Veteran's report of symptomatology, objective medical findings, and all other evidence of record. Moreover, Dr. Bloome's opinion is consistent with other probative evidence of record and served as the basis for the October 2004 Board grant of service connection for adult-onset Still's disease. The November 1987 statement of Dr. Quimby is the only competent evidence of the Veteran's first cardiac/heart diagnosis and treatment, occurring in approximately 1958. The lack of cardiac/heart related treatment for almost 10 years after separation and the Veteran's generally consistent account of symptomatology render any suggestion of continuity of symptomatology not credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007). The opinions of Dr. Quimby, in November 1987 and July 1989, and Dr. Culpepper, in November 1987, provide opinions based largely, if not entirely, on the inaccurate factual premise that a cardiac/heart disability was accurately diagnosed during military service. Therefore, the opinions are of no probative value. There is no probative evidence of record that the Veteran has a heart disability related to service, or that is caused or aggravated by a service-connected disability. The April 2013 VHA expert opinion is highly probative because it provides a cogent opinion that is based on consideration and analysis of all evidence of record, medical and lay, and the examiner's medical expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The expert's opinion clearly indicates that no diagnosed cardiac/heart disability is likely related to military service and was not likely caused or aggravated by a service-connected disability(ies). The preponderance of the evidence is against the claim; there is no doubt to be resolved; and service connection for a heart disability is not warranted. ORDER Service connection for a heart disability is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs