Citation Nr: 1329256 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-11 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for heart disability, to include as secondary to the Veteran's service-connected hypertension. 2. Entitlement to service connection for left eye condition, to include as secondary to the Veteran's service- connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from April 1968 to March 1970. This matter came to the Board of Veterans' Appeals (Board) from a September 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in November 2010 for further development. A review of the record shows that the RO has complied with all remand instructions by requesting service treatment records from the National Personnel Records Center (NPRC), asking the Veteran to identify any outstanding records showing post service and VA medical treatment, affording the Veteran VA examinations in February 2011 and August 2011, and issuing a supplemental statement of the case. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran testified at an August 2010 Board videoconference hearing. A transcript is of record. Although the appeal also originally included the issue of service connection for hypertension, this benefit was granted by rating decision in January 2012 and is therefore no longer in appellate status. FINDINGS OF FACT 1. Hypertensive heart disease was caused by the Veteran's service-connected hypertension. 2. Left eye hypertensive retinopathy was caused by the Veteran's service-connected hypertension. CONCLUSIONS OF LAW 1. Hypertensive heart disease is proximately due to the Veteran's service-connected hypertension. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). 2. Left eye hypertensive retinopathy is proximately due to the Veteran's service-connected hypertension. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Laws and Regulations The issues before the Board involve claims of entitlement to service connection for heart disability and left eye disability. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection is warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). All theories of entitlement- -direct and secondary--must be considered. See Hodge v. West, 155 F.3d 1356, 1362-1363 (Fed. Cir. 1998) (noting that Congress expects the VA "to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits"). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). Analysis I. Heart Disability The Veteran testified at the August 2010 hearing that he was hospitalized for a heart condition diagnosed as cardiomyopathy and underwent a heart catheterization during service. In-service treatment records report the Veteran was diagnosed with idiopathic myocardopathy, possibly alcoholic in origin, in September 1968 and was admitted to the hospital. A clinical record cover sheet reflects that the Veteran was hospitalized at the hospital at Fort Benjamin Harrison from September 19, 1968, to October 5, 1968. He was later admitted to the Fitzsimons General Hospital from October 1968. The Veteran's separation examination in February 1970 noted the Veteran underwent a heart catheterization in November 1968 and there were no residuals or abnormal findings following the procedure at separation. The Veteran indicated he had or still had pain or pressure in the chest but no recent symptoms. Turning to the post-service medical records, an invoice issued from Heart of Texas Cardiology indicates the Veteran received various treatments for his heart in August 2007. In addition, the Veteran testified that he was treated at the Overton Brooks VA Hospital for his heart condition. The Veteran was afforded a VA examination in February 2011. The examiner interviewed and examined the Veteran, and reviewed the claims file. The examiner stated that the Veteran's myocarditis healed in service without residuals, and that there is no objective evidence of idiopathic cardiomyopathy in-service or post-service. The examiner, however, diagnosed left ventricular hypertrophy and opined that it is less likely as not related to service. The examiner explained that there is no left ventricular hypertrophy in service. He further opined that the left ventricular hypertrophy is most likely due to hypertension. The Veteran was afforded another VA examination in August 2011 after interviewing and examining the Veteran, and after reviewing the claims file, the VA examiner noted that the Veteran did not have cardiomyopathy in the military as evidenced by a normal cardiac catheterization in 1968. He further noted that there is no evidence of ischemia or cardiomyopathy by echocardiogram or current myocardial perfusion stress test. However, the examiner diagnosed hypertensive heart disease and stated that it is at least as likely as not that it is etiologically related to service. The opinion was based on the fact that the Veteran had pre- hypertension in 1968. He noted that the Veteran met the criteria of pre-hypertension in the military and that it preceded hypertension that led to hypertensive heart disease. The Board notes that the Veteran is already service- connected for hypertension. With no medical evidence to the contrary, the Board finds that the Veteran's hypertensive heart disease is proximately due to treatment related to the service-connected hypertension. Consequently, service connection is warranted. II. Left Eye disability The Veteran testified at the Board hearing that he was treated on several occasions for headaches and problems with his sight. The Veteran stated he was on sick call on numerous times for issues with his eyes while stationed in Korea. According to the in-service treatment records, in August 1968 the Veteran reported seeing spots in front of his left eye. In an undated ophthalmologic consultation report it was noted the Veteran was losing sight in the left eye. In February 1969, the Veteran reported pain in his eyes, fever and chills. In the February 1970 report of medical history at separation, the Veteran replied "yes" to history of or current eye problems. In Dr. P.A.L.'s May 2007 letter, it was reported the Veteran complained of "fuzzy vision" at distance and near. The "[o]phthalmoscopy (dilated) showed tortuous blood vessels O.S. and a posterior vitreous detachment and cotton wool spots O. D." Dr. P.A.L. noted the Veteran's poor control of his blood pressure and his diagnosis of hypertension. There was no opinion regarding whether the Veteran's current eye condition was related to his service. Accordingly, the Board remanded the claim in November 2010 for additional development. The Veteran was afforded a VA examination in February 2011. After interviewing and examining the Veteran, and after reviewing the claims file, the examiner provided a negative nexus opinion for cataracts, mild dry eyes and refractive error and presbyopia. However, he opined that hypertensive retinopathy is caused by hypertension. The Veteran was afforded another VA examination in August 2011. After interviewing and examining the Veteran, and after review of the claims file, the examiner diagnosed cortical cataracts and noted that while cataracts are associated with certain specific medical conditions, they are often seen in individuals with no underlying cause other than advancing age. As noted previously, the Veteran is already service- connected for hypertension. With no medical evidence to the contrary, the Board finds that the Veteran's left eye hypertensive retinopathy is proximately due to treatment related to the service-connected hypertension. Consequently, service connection is warranted. There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Board notes that an RO letter in April 2007 informed the Veteran of the manner in which disability ratings and effective dates are assigned. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Service connection for hypertensive heart disease is granted. Service connection for left eye hypertensive retinopathy is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs