Citation Nr: 1328754 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 07-26 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a heart disability (claimed as heart murmur, mitral valve prolapse, and right bundle branch block). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to July 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a Board hearing in Washington, DC; however, he withdrew that request in October 2009. In March 2011 and January 2013, the Board remanded the above issue for additional development. FINDING OF FACT The most probative evidence of record shows that the Veteran has not been diagnosed with a heart disability at any time during the pendency of the appeal. CONCLUSION OF LAW A heart disability not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) 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, and 5126 (West 2002)) redefined VA's duty to assist a claimant 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, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In the current appeal, the Board finds that October 2006 and February 2013 letters provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a). These letters provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The October 2006 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last adjudicated in June 2013. As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence. In this regard, the RO obtained his service treatment records and service personnel records as well as the VA examination reports. See 38 U.S.C.A. § 5103A(b). The record does not include any post-service treatment records. However, the Board finds that a remand to attempt to obtain such records is not required because the Veteran has never identified the location of his records despite being asked to do so by VA in the October 2006 and February 2013 letters and in June 2013, in substantial compliance with the Board's remand instructions, that AMC undertook a search for any outstanding VA treatment records and that search did not find any treatment records. See 38 U.S.C.A. § 5103A(b); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim"); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). . The record also shows that the Veteran was provided with a pre-remand VA examination in November 2006 and post-remand VA examination in April 2011. The record also shows that in April 2013 an addendum was obtained. Moreover, the Board finds that collectively the examinations and addendum are adequate to adjudicate the claim, and as to the 2011 examination and 2013 addendum substantially comply with the Board's remand instructions. See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall, supra; Dyment, supra. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, he was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file and Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the record shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b) (2012). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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 has claimed service connection for a heart murmur, mitral valve prolapse, and right bundle branch block (RBBB). The Veteran claims, in essence, that the mitral valve prolapse and RBBB as well as the heart murmur he had during service, have continued to the current day and constitute a current heart disability for which service connection may be granted. Upon review of the record, the Board finds the preponderance of the probative evidence is against the claim for service connection for a heart disability. The cornerstone of any claim for compensation is the presence of a current disability. Regardless of whether the Veteran had heart symptomatology while on active duty, such as a mitral valve prolapse, RBBB, and a heart murmur, a current heart disability must be shown before service connection can be granted. In this regard, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Here, the most probative evidence indicates the Veteran does not have a heart disability shown during the course of the claim, which was filed in 2006. The Board recognizes that service treatment records document the fact that the Veteran had a mitral valve prolapse, RBBB, and a heart murmur as well as noted that he had a history of a heart murmur as a child. See, for example, service treatment records dated in August 1989 and August 1993; stress tests dated in August 1989 and September 1989; electrocardiograms dated in May 1993, June 1998 and January 2006; service examinations dated in May 1993, June 1993, June 1998, July 2003, and January 2006. However, these findings are merely symptoms without any actual heart disability being present. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (holding that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted). In this regard, the Board notes that the September 1989 stress test reported that there was no abnormality of the myocardium of the left ventricle and this medical opinion is not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Post-service, while the November 2006 VA general examiner noted that the Veteran did not have a mitral valve prolapse, he also opined that he had a RBBB. Similarly, at the April 2011 VA examination it was opined that the Veteran's last echocardiogram done in October 2006 showed "mild thickening of anterior mitral valve leaflet with trace MR- (no MVP), normal LV size function and normal RV function." However, in the April 2013 addendum to the April 2011 VA examination, it was clarified that a thorough cardiac evaluation did not reveal any underlying heart disability including a mitral valve prolapse. It was also clarified that RBBB is not in and of itself a heart disability but is an electrical pattern seen on echocardiography (ECG) that occurs when the cardiac electrical impulse is interrupted as it spreads across the heart. It was also explained, that the earlier October 2006 echocardiogram findings of "mild thickening of anterior mitral valve leaflet with trace MR- (no MVP)," did not show that the Veteran had a mitral valve prolapsed or any other heart valve abnormality but instead was "a description of a benign finding." In the April 2013 addendum, the examiner thereafter opined that the earlier RBBB finding by the November 2006 VA examiner "is an electrical [electrocardiogram (EKG)] finding with no heart disease" which is congenital in nature and was not worsened or aggravated by service because there is no medical evidence of such worsening. Lastly, the examiner opined as to the Veteran's in-service mitral valve prolapse that his echocardiogram does not meet the criteria for a diagnosis of mitral valve prolapse and he does not have a current mitral valve prolapse. These opinions are not contradicted by any other medical opinion of record. See Colvin, supra. Indeed, as noted above, the Veteran has not provided any information on private treatment providers such that records could be requested to help support his claim. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). While the Veteran and his representative as lay persons are competent to report on the claimant's observable symptoms, because this requires only personal knowledge as it comes to them through their senses, the Board finds that they are not competent to provide a diagnosis of a chronic heart disability because such an opinion requires medical expertise which they do not have. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Moreover, the Board finds more probative the opinion by the medical professional in April 2013 that the Veteran does not have any current heart disability than these lay assertions. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Given the above, the Board finds that the most probative evidence of record does not establish that the Veteran has a heart disability during the course of the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); See also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Therefore, as the most probative evidence of record is against a finding that the Veteran has a heart disability during the pendency of his appeal, the Board finds that entitlement to service connection for a heart disability must be denied. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b). However, as the most probative evidence of record is against the claim, the Board finds that doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a heart disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs