Citation Nr: 1328918 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 06-14 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for coronary artery disease (CAD), status post artery bypass surgery and myocardial infarction. REPRESENTATION Appellant represented by: John R. Worman, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran service on active duty for training (ACDUTRA) from July 1966 to December 1966, subsequently serving in the National Guard, retiring in October 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran testified before a VA Decision Review Officer (DRO) in June 2006. A transcript of the hearing is of record. Procedural History The Board considered and denied the Veteran's claim in March 2010. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court) which, in an August 2011 memorandum decision, vacated the March 2010 Board decision and remanded the case for further consideration. The Board then remanded the Veteran's claim to the Agency of Original Jurisdiction for additional development, to include providing a VA examination with addendum opinion. Substantial compliance with the previous remand having been completed, the case is once again before the Board for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT A myocardial infarction did not have its onset in nor was it aggravated by any period of ACDUTRA; any current coronary artery disease is not otherwise etiologically related to a period of ACDUTRA via incurrence or aggravation. CONCLUSION OF LAW Coronary artery disease (CAD), status post coronary artery bypass surgery and myocardial infarction, were not incurred in or aggravated by a period of ACDUTRA. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 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). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the instant case, the Veteran was provided a letter in July 2004 that notified him of his and VA's respective responsibilities for obtaining different types of evidence. However, it did not provide notice of any of the elements of service connection. A March 2006 VCAA notice letter informed the Veteran of the evidence required to establish the degree of disability and the effective date, but still did not provide notice of the first three elements of service connection. However, for the following reasons, the Board finds that the Veteran has not been prejudiced by any notice deficiencies. The existence of a current disability has already been established, and thus any notice error relating to this element is moot. In order to establish veteran status with respect to the period at issue, namely the period of ACDUTRA from September 9 to September 20, 1996, the claimant must show that he was disabled from a disease or injury incurred in or aggravated by this period of ACDUTRA, as will be discussed in more detail below. Thus, in this case, the evidence required to establish a connection between the Veteran's current disability and his period of ACDUTRA, and to establish veteran status, is the same. The Board finds that the Veteran, through his own testimony and through his counsel, has demonstrated actual knowledge of the requirement that there be a connection between his period of service and his current disability, which would also establish veteran status for the period at issue. In this regard, the Veteran argued at the June 2006 RO hearing that his chest pain occurred during his period of active duty training, and that thereafter he did not feel well until he suffered a heart attack on September 25, 1996. The Board finds that this testimony, as well as the law and arguments set forth by the Veteran's representative in the October 2006 statement and April 2009 and February 2010 appellant's briefs, demonstrate actual knowledge of this element of the claim. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007); Overton v. Nicholson, 20 Vet. App. 427, 428, 438 (2006). Accordingly, the Board finds that lack of notice with respect to establishing veteran status and a connection between the period of service and the current disability was harmless error and that no prejudice exists. See Mayfield v. Nicholson, 19 Vet. App. 103, 122 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board also notes that the March 2006 notice letter regarding the degree of disability and the effective date was sent after the initial rating decision in this matter. However, the Veteran had an opportunity to respond with additional argument and evidence before his claim was subsequently readjudicated and a supplemental statement of the case (SSOC) issued in July 2006. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). Service treatment records are associated with claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations for his disability on appeal. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159 (c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds these examinations are adequate for the purposes of the instant claim, as they involved a review of the Veteran's pertinent medical history as well as a physical examination of the Veteran, and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran asserts entitlement to service connection for coronary artery disease, status post bypass surgery and myocardial infarction. For the reasons that follow, the Board concludes that service connection is not warranted. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) ; 38 C.F.R. § 3.6(a) . The Veteran claims that his current coronary disability stems from a period of ACDUTRA from September 9 to September 20, 1996. ACUDTRA status for this period has been verified by a statement of retirement points from the South Dakota Adjutant General's Office, as well a September 1996 record reflecting an order to the Veteran to report for active duty for the period at issue. The Board notes that only "veterans" are entitled to service-connected disability benefits. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a),(d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., the veteran's period of active duty in the Army) does not obviate the need to establish that the claimant is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Turning to the record, the Veteran testified at the June 2006 DRO hearing that he experienced chest pain and generally did not feel well while engaging in physical training during the September 1996 period of ACDUTRA. He stated that he reported his symptoms to the officer on duty, who instructed him to rest for a while. After doing so, he finished the weekend drill. He further testified that in the weeks following the drill he continued to not feel well, and about two weeks later was hospitalized for a myocardial infarction and bypass surgery. The Veteran argues that his coronary artery disease, status post bypass surgery and myocardial infarction, stems from the chest pain and other symptoms he experienced during physical training. Initially, the Board observes the Veteran is competent to report symptoms of chest pain, fatigue and general malaise. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Further, the Board finds the Veteran's statements regarding such symptomatology, as well as other lay statements submitted on his behalf describing his symptoms, are credible. However, despite the competency and credibility of these lay statements regarding the symptomatology the Veteran experienced during his period of ACDUTRA, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See id. In other words, while the Board accepts the Veteran's statements that he experienced chest pains and did not feel well during his period of ACDUTRA as true, as a lay person, the Veteran himself may not offer a medical opinion linking these symptoms to his subsequently diagnosed myocardial infarction and/or coronary artery disease. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Such a diagnosis and etiological opinion must come from a medical professional. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board has reviewed the Veteran's service treatment records. Prior to the Veteran's hospitalization in September 1996, the Veteran's service treatment records, including those pertaining to the Veteran's initial period of active duty from July 1996 to December 1996, are negative for diagnoses, treatment, complaints, or any other indication of a heart condition or chest pain. A July 1995 periodic examination, conducted a little over one year prior to the period at issue, is negative for any indication of a heart condition. An EKG reflected in this record was within normal limits. The Board notes that there are no service treatment records pertaining to the Veteran's period of ACDUTRA from September 9 to September 20, 1996. Moreover, at the June 2006 RO hearing, the Veteran denied being treated for a heart condition or hypertension prior to the September 1996 hospitalization. At the June 2006 RO hearing, the Veteran stated that at the time of his physical training he was a little overweight, had not been exercising much, and simply did not feel well at the time. He also stated that he had been experiencing a lot of indigestion. A June 2006 letter from the officer on duty during the September 1996 weekend drill reflects that the Veteran had been running when he reported that he did not feel well, complaining of chest pressure and pain, nausea, and feeling lightheaded. The Veteran was instructed to return to quarters and rest, which he did. After a while, the Veteran stated that he felt well enough to return to duty for the rest of the weekend. A June 2006 letter from a fellow service member who was present at the training states that the Veteran experienced shortness of breath and was therefore unable to finish a physical fitness test in September 1996. The Veteran's private treatment records reflect that he presented to the emergency room on September 25, 2006 for chest pain which had started in the afternoon that day. The records reflect that the Veteran had been well up until then, although as discussed above the Veteran states that he had not felt well for about a couple of weeks since the physical training. The Veteran's history was negative for a myocardial infarction, stroke, diabetes, hypertension or any other cardiac conditions. He was admitted to the hospital where he was diagnosed with left main coronary artery disease, status post acute myocardial infarction, and underwent coronary artery bypass surgery. The Veteran was provided with a VA examination in March 2009 which, with respect to the question of whether the Veteran's myocardial infarction manifest during the September 1996 period of ACDUTRA, was found to be inadequate by the Court. See August 2011 memorandum decision at 2. A second VA examination was provided in May 2012. Following a review of the claims folder and clinical evaluation of the Veteran, the VA examiner opined that it is less likely than not that the Veteran's myocardial infarction is related to his period of ACDUTRA from September 9 to September 20, 1996. It was opined that a myocardial infarction was not incurred in or aggravated by ACDUTRA. In fact, the VA examiner noted that it is "extremely unlikely" that the symptoms experienced by the Veteran on September 14, 1996, represented symptoms of a myocardial infarction or heart attack. Rather, the examiner determined these symptoms represented an episode of angina. The examiner noted that, since the angina episode subsided with rest (in fact, the Veteran was able to continue to duty through the remainder of his period of ACDUTRA), and since the record does not discuss any prior period of chest pain, these symptoms did not represent a heart attack, which occurred on September 25, 1996, following the completion of the Veteran's period of ACDUTRA. The Board observes that angina is defined as pectoris and "any, spasmodic choking, or suffocative pain." Dorland's Illustrated Medical Dictionary 84 (31st ed. 2007). Pectoris is a paroxysmal thoracic pain; "it is most often due to ischemia of the myocardium and precipitated by effort or excitement." The examiner specifically stated that this opinion is based on the history, records and CPK elevation and not on the EKG, LDH or SGOT lab results, which had served as the basis for the Court's August 2011 decision that the March 2009 VA opinion is inadequate. Given the lack of probative evidence of chronic disability associated with the episode of chest pain, service connection is not warranted for the episode of angina. With respect to coronary artery disease, the Board notes the March 2009 VA opinion determined that this condition, when considered separate from the myocardial infarction, could not have had its onset during the September 1996 ACDUTRA, as this condition develops over a prolonged period of several years or more with gradual development of atherosclerotic plaques in the coronary arteries. Therefore, coronary artery disease preexisted the Veteran's period of ACDUTRA. This portion of the opinion was not found to be inadequate by the August 2011 memorandum decision. In order to establish aggravation of a preexisting condition during a period of ACDUTRA, the claimant bears the burden of showing both: (1) that he experienced a permanent increase in disability during his period of ACDUTRA; and (2) that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167 (2010). With respect to aggravation, the Board finds that the Veteran has not met this burden of proof. The Veteran has produced no competent evidence or medical opinion showing his preexisting coronary artery disease permanently increased in severity during any period of ACDUTRA. Thus, while the episodic angina experienced on September 14, 1996, may have been a symptom of coronary artery disease, as found by the May 2012 VA examiner, this episode resolved and the Veteran was able to return to duty to complete his period of ACDUTRA. There is no evidence of permanent aggravation of coronary artery disease. The May 2012 VA examiner specifically indicated that the Veteran's chest pain subsided with rest and he was able to return to duty. In sum, the Board finds the preponderance of the evidence is against a finding that the Veteran's chest pain during the September 1996 period of ACDUTRA was a manifestation of a myocardial infarction, or is otherwise related to the myocardial infarction that occurred on September 25, 1996. As the Veteran stated at the June 2006 RO hearing, he was generally not feeling well during the period of his physical training. He was overweight, had not been exercising, and was experiencing indigestion. The May 2012 VA examiner determined the Veteran's chest pain to be episodic angina, which resolved with rest, and not related to the September 25, 1996, myocardial infarction. Furthermore, the March 2009 VA examiner determined the Veteran's coronary artery disease preexisted this period of ACDUTRA based on the prolonged development of the condition, and the Veteran has not met his burden establishing permanent aggravation of this preexisting condition. The Veteran has not produced a competent medical opinion in support of his claim. Therefore, the Board finds that the preponderance of the evidence is against a nexus between the Veteran's current cardiovascular disability and his period of ACDUTRA from September 9 to September 20, 1996. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for coronary artery disease, status post coronary artery bypass surgery and myocardial infarction, must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for coronary artery disease, status post coronary artery bypass surgery and myocardial infarction, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs