Citation Nr: 1328714	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  07-19 073	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for a cardiovascular disability, to include as secondary to the service-connected venous insufficiency of the left lower extremity.

2.  Entitlement to service connection for hypertension, to include as secondary to the service-connected venous insufficiency of the left lower extremity.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

F. Yankey, Counsel



INTRODUCTION

The Veteran served on active duty from August 1968 to March 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

The Board notes that the Veteran submitted additional medical evidence following the last adjudication by the RO.  However, he has waived RO consideration of that evidence.  See May 2013 Informal Hearing Presentation.

In May 1988, the Veteran executed a VA Form 21-22, appointing the American Legion as his representative.  In addition, statements were subsequently submitted by the American Legion, on the Veteran's behalf, including a January 2008 Form 646, a January 2011 Written Brief Presentation, and a May 2013 Informal Hearing Presentation.  The American Legion was also listed as the Veteran's appointed representative in the January 2008 VA Form 8, Certification of Appeal.

The Disabled American Veterans also submitted statements on the Veteran's behalf in June, August and September 2012, and February, March and May 2013, indicating that they were his accredited representative.  However, as of May 2013, there was no formal VA Form 21-22, declaring the Disabled American Veterans as the Veteran's representative, associated with the claims file.  

As such, in July 2013, the Veteran was contacted and requested to clarify who his appointed representative was, and to submit a completed VA Form 21-22, confirming the representation.  In response, in July 2013, the Board was sent a copy of a properly executed VA Form 21-22, dated in May 2012, appointing the Disabled American Veterans as the Veteran's representative.  This appointment has not since been revoked.  Accordingly, the Board finds that the Disabled American Veterans is the proper representative for all claims on appeal.  

In February 2011, the Board remanded the case for further development by the originating agency.  The case has been returned to the Board for further appellate action.

The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

A cardiovascular disability was not present in service or for many years thereafter, and is not etiologically related to service or a service-connected disability.


CONCLUSION OF LAW

A cardiovascular disability was not incurred or aggravated during active duty, is not proximately due to or the result of a service-connected disability, and its incurrence or aggravation during active duty may not be presumed.  38 U.S.C.A. §§ 1101, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).


Under the VCAA, VA 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.  Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also 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.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

In January and March 2006 letters, issued prior to the initial adjudication of the claim, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection.  The letter satisfied the second and third elements of the duty to notify by informing the Veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that he was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them.

The Veteran has substantiated his status as a Veteran.  He was notified of all elements of the Dingess notice, including the disability-rating and effective-date elements of the claim in the March 2006 letter.
VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim, as was done here.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003).  


The Duty to Assist

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  The VCAA also provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.

VA has obtained service treatment records and assisted the Veteran in obtaining evidence.  All known, identified, and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise.  Additionally, the Veteran was provided a proper VA examination in May 2006 for his claimed cardiovascular disability.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The appeal is thus ready to be considered on the merits.

Legal Criteria

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. § 1110; 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 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.  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).  The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

In relevant part, 38 U.S.C.A. 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (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 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991).  Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible.  See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted").  

Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests cardiovascular disease, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.  

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310 (2011); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993).  

In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).  

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2010); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54.  

Analysis

The Veteran maintains that he has a cardiovascular disability, which developed as a result of his active military service, or as a result of the service-connected venous insufficiency of his left lower extremity.

A cardiovascular disability was not diagnosed until many years after service, and there is no competent evidence to establish that the Veteran has a current cardiovascular disability that is due to any event or incident of the Veteran's period of active duty.  

Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a cardiovascular disability or heart problems during service or at the time of the Veteran's discharge from service.

VA and private treatment records show that the Veteran was tested for a heart condition after complaining of feeling light-headed and occasional vague atypical chest discomfort.  A persantine stress test and echocardiogram conducted in April 2005 showed some abnormalities, but also a normal left ventricle ejection fraction.  The Veteran was placed on an event recorder in June 2005, which showed normal sinus rhythm.  During a neurology consultation in May 2005, the Veteran complained of dizziness and disorientation, which started one month before, which usually occurred while standing up or standing for a prolonged period of time.  The neurologist concluded that although he believed the Veteran's symptoms were likely secondary to orthostatic hypotension, there was no orthostatic hypotension detected on the neurological examination.  He also noted that he could not exclude the possibility of vertebral basilar insufficiency being responsible for the symptoms.  During a cardiology consultation later that same month (May 2005), the Veteran was diagnosed with concentric left ventricular hypertrophy with normal left ventricular systolic function and diastolic dysfunction.  It was also noted that he had mild tricuspid regurgitation with estimated pulmonary artery systolic pressure around38 to 40 mmHg.  The examiner concluded that the Veteran's diagnosis was possibly related to venous pooling or was vasovegal in nature.

The Veteran was afforded a VA examination in response to his claim in May 2006.  He complained of dizziness after standing for roughly three hours, and denied any chest pain at rest or with exertion.  He also complained of shortness of breath after walking one-third mile or climbing one flight of stairs.  He denied any syncope (fainting), myocardial infarction (heart attack), congestive heart failure, or rheumatic heart disease.  The examiner noted that the Veteran had an echocardiogram in April 2005, which showed concentric left ventricular hypertrophy, mild tricuspid regurgitation, a pulmonary artery systolic pressure of 38 to 40 mmHg, and an ejection fraction of greater than 55%.  However, he also noted that a May 2006 persantine stress test (PTST) was normal.  

The examiner opined that the Veteran's dizziness was as likely as not related to his service-connected venous insufficiency, based on the findings of the VA cardiologist in May 2005, noted above.  However, he also concluded that the Veteran did not have any clinically apparent cardiac disease, based on his history and a normal PTST.

On review, evidence of record does not show a current cardiovascular disability.  Although the Veteran has reported chest pain, dizziness and light headedness, and was diagnosed by echocardiogram in 2005 with left ventricular hypertrophy, these findings have not been shown to be manifestations of any current, underlying cardiovascular disability.  To the contrary, the May 2006 VA examiner, after an entirely unremarkable cardiovascular examination, including a normal PTST, did not diagnose any cardiovascular disease.  

There is no other medical evidence of record, VA or private, which indicates that the Veteran has a current cardiovascular disability related to his active military service.

In addition, although the record shows that the Veteran is service connected for venous insufficiency of the left lower extremity, there is no medical evidence which tends to show that he has a currently demonstrated cardiovascular disability which was caused or aggravated by this service-connected disability.  

The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because there is no competent evidence of a compensably disabling cardiovascular disability within one year following the appellant's discharge from active duty.

The Veteran is competent to report the symptoms of his disability; however, it would require medical expertise to say that the left ventricular hypertrophy, identified long after service, is the result of a disease or injury in service, or is related to a service-connected disability.  The Veteran, as a layperson, is not qualified to render an opinion concerning the medical cause of his left ventricular hypertrophy.  38 C.F.R. § 3.159(a)(1),(2) (2012).

In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable.  



ORDER

Service connection for a cardiovascular disability is denied.


REMAND

In addition to the claimed cardiovascular disability, the Veteran also maintains that he has hypertension, which developed as a result of his active military service, or as a result of the service-connected venous insufficiency of his left lower extremity.

Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to hypertension during service or at the time of the Veteran's discharge from service.

The Veteran has reported during VA treatment and VA examinations, that he was diagnosed with hypertension in the early 1970s.  However, VA and private treatment records do not show a diagnosis or treatment for hypertension before 1993.

The Veteran was afforded a VA examination in May 2006.  The examiner noted that the Veteran had hypertension, which was poorly controlled, and opined that the hypertension was not related to or aggravated by his venostasis.  He did not offer an opinion as to whether the Veteran's hypertension was directly related to his military service, nor did he provide a rationale for this opinion that the hypertension was not related to the service-connected venous insufficiency.  As such, the Board finds that this opinion is inadequate for evaluation purposes.

The Veteran was afforded another VA examination in July 2007.  He reported at that time that he believed his high blood pressure was caused from his sedentary lifestyle and obesity while in the military.  He admitted to being overweight before entering the military, but maintained that his position as a pharmacy technician in the military, required prolonged periods of standing, which ultimately led to high blood pressure.  He also reported that he was never treated in the military for high blood pressure.  The examiner noted that there was no record of the Veteran having hypertension during military service.  He also noted that the Veteran self-admittedly entered the military with a pre-existing weight problem, which is confirmed by his early military record.  He opined that over time, the Veteran's weight problem (which did not begin in the military) undoubtedly led to his high blood pressure.  The examiner also noted that the Veteran's hypertension was also related to the aging process.  

The Veteran has submitted several articles which discuss the relationship between obesity and the development of high blood pressure, in support of his argument that he was at higher risk for developing high blood pressure due to his documented problems with obesity during military service.  The Board notes that service treatment records do show that the Veteran underwent dietary counseling and obesity physicals in the military between 1968 and 1969.  In addition, his military entrance examination report shows that he was overweight.  However, as noted above, there is no evidence of a diagnosis or treatment for hypertension in service or at the time of the Veteran's discharge.  Furthermore, the Veteran is not currently service-connected for obesity, and therefore, service-connection for hypertension, secondary to obesity is not warranted in this case.  

The Veteran has also reported that he was taking medication for hypertension in the early 1970s.  In support of this claim, he has submitted statements from relatives and friends, who claimed to have witnessed him taking hypertensive medication during that time.  He also submitted a copy of a prescription label for the medication Dyazide, which is a hypertension medication, which he claims was a continuous medication prescribed by a private physician who treated him for hypertension following his discharge from service in 1971.  However, the Board notes that the date of the prescription was April 9, 1974, and there is no indication on the prescription label of when the medication was first prescribed.  Furthermore, the RO attempted to obtain records of treatment from Dr. Woodward for the time frame the Veteran reported he was treated.  However, the record reflects that in March 2011, the Veteran reported that Dr. Woodward died in April 1994, and that he had been informed by the Indianapolis Medical Society that there were no records of treatment for the Veteran available.  See March 2011 Report of Contact.
The July 2007 VA examiner did not specifically offer an opinion as to the relationship between the Veteran's hypertension and his service-connected venous insufficiency of the left lower extremity.  Instead, he merely opined that the Veteran's history of venous insufficiency of the left leg appeared to be related to a prior condition of phlebitis.  He did not provide a rationale for this opinion, nor did he explain further why the Veteran's hypertension was not caused or aggravated by the service-connected venous insufficiency of the left lower extremity.  As such, the Board finds that this opinion is also inadequate for evaluation purposes.

Once VA undertakes to provide an examination it is obligated to insure that the examination is adequate.  Barr v. Nicholson, 21 Vet.App. 303 (2007).  Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination."  Goss v. Brown, 9 Vet.App. 109, 114 (1996); Stanton v. Brown, 5 Vet.App. 563, 569 (1993).

Therefore, the Board believes that the Veteran should be afforded another VA examination to determine the nature and etiology of his currently diagnosed hypertension.  38 U.S.C.A. § 5103A(d) (West 2002). 
The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case and that the consequences of failure to report for a VA examination without good cause may include denial of the claim.  See 38 C.F.R. §§ 3.158 and 3.655 (2012).

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA examination by a physician with appropriate expertise to determine the etiology of his hypertension.  The claims folder must be made available to and reviewed by the examiner.  Any indicated studies should be performed.  


The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current hypertension is causally or etiologically related to the Veteran's military service.

The examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the current hypertension was caused by or chronically worsened by the Veteran's service-connected venous insufficiency of the left lower extremity.  

The examiner should provide a rationale for all opinions and conclusions expressed.  If an answer cannot be provided without resort to speculation, the examiner should provide a reason why this is so, and note whether there is any additional evidence that would permit an answer to be provided. 

The examiner is advised that the Veteran is competent to report symptoms and injuries, as well as diagnoses provided to him by physicians.  If the Veteran's reported history is discounted, the examiner should provide a reason for doing so.

3.  If any benefit sought on appeal remains denied, issue a supplemental statement of the case.  Then return the case to the Board, if otherwise in order.

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).



______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs