Citation Nr: 1330058 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 04-28 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a heart disorder, to include as secondary to service-connected posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active military service from February 1942 to February 1946. He passed away during the pendency of the appeal in April 2011; his surviving spouse has been properly substituted as the appellant in the instant case. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board denied the instant claim in an August 2010 decision. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2012 memorandum decision, the Court set aside the August 2010 Board decision and remanded the matter for additional consideration. The Board then requested and obtained a Veterans Health Administration (VHA) medical opinion. The claim is once again before the Board for appellate consideration. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. A chronic heart disorder, to include hypertension, was not manifested during the Veteran's active service or for many years following service separation; any current heart disorder is not otherwise etiologically related to such service. 2. A chronic heart disorder, to include hypertension, is not proximately due to, nor chronically worsened by, a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a heart disorder have not been met. 38 U.S.C.A. §§ 1110, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA's duty to notify has been satisfied through notice letters dated January 2003, March 2006, August 2006, and May 2008 that fully addressed all notice elements. These letters informed the Veteran of what evidence was required to substantiate his claim on both a direct and secondary basis, and of the Veteran's and VA's respective duties for obtaining evidence. The Veteran was requested to submit any evidence in his possession and has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. The March 2006 letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The May 2008 letter provided notice regarding how to substantiate a secondary service connection claim. His claims were then readjudicated in Supplemental Statements of the Case. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. 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 VA and private treatment records identified by the Veteran and appellant 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 appellant in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). Numerous medical opinions have been obtained in conjunction with the instant claim, which are adequate for the purposes of determining service connection as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provides an etiological opinion with supporting rationale, including a review of pertinent medical literature. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007). The Board remanded this case in February 2009 so the Veteran could undergo a VA examination, which was provided in March 2009. It was remanded again in September 2009 so the RO could obtain private medical records identified by the appellant. Additional private medical records were obtained. There was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. 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, and through substitution the appellant, asserts service connection for a heart disorder as directly related to active service. Alternatively, service connection is asserted on a secondary basis as due to or aggravated by a service-connected psychiatric disability, diagnosed as PTSD. For the sake of clarity, the Board will address the Veteran's theories of entitlement separately below. Direct Service Connection 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). Further, where a veteran asserts entitlement to a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As the Veteran's diagnosed cardiovascular disorder(s) are listed as a chronic disease under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) pertaining to continuity of symptomatology apply in this case. With respect to direct service connection, while the evidence reveals that the Veteran suffered from a number of cardiovascular disorders, including hypertension, coronary artery disease (CAD), congestive heart failure, peripheral vascular disease and arteriosclerosis, the competent, probative evidence of record does not etiologically link the Veteran's heart disability to his service or any incident therein. Service treatment records are absent complaints or treatment for a heart disorder, including hypertension. The report of a February 1946 medical examination, conducted prior to the Veteran's separation from active service, shows the Veteran's cardiovascular system was clinically evaluated as normal. The Board therefore finds the Veteran did not suffer a chronic heart condition during active service. Furthermore, the record does not show, nor did the Veteran or appellant assert through lay statements, that the Veteran received any treatment for, or experienced any symptomatology of, a heart disorder for well over one year following service separation. In this regard, the Veteran reported that he sought treatment for high blood pressure in the late 1940s, and by 1951 was on hypertension medication. See July 2009 statement from the appellant. A September 1965 VA examination report showed the Veteran had a normal heart evaluation, but was noted to have arterial hypertension of unknown etiology. Additionally, the Veteran reported that the onset of his current heart disorder was in 1975, when he suffered from a myocardial infarction. Given the facts and assertions of record, the Board finds that the Veteran did not suffer from symptomatology related to his heart disorder continuously since service and, therefore, service connection is not warranted under the provisions of 38 C.F.R. § 3.303(b). There is no competent medical opinion of record in support of the appellant's claim that the Veteran's heart disorder was etiologically related to his active service. The Board notes that the March 2009 VA examiner concluded that the Veteran's heart disorder was not caused by or a result of his active service. The examiner noted that the evidence did not show any diagnosis of a heart or vascular disease in service. To be adequate, a medical opinion must be based upon an accurate factual premise. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). This includes considering a veteran's lay assertions of symptomatology that he is competent to observe, unless the Board has explicitly found that the assertions are not credible. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The March 2009 examiner's opinion is adequate because he did not ignore lay assertions that the Veteran had symptoms or diagnoses of a heart condition while on active duty. No such assertions were made. Instead, the Veteran and the appellant have consistently argued that the Veteran's heart condition was caused or aggravated by his service-connected PTSD. Prior to the March 2009 examination, the Veteran had not asserted that he experienced symptoms of or was diagnosed with a heart problem during service. In his July 2004 VA Form 9, he asserted that his heart condition was the result of his service-connected PTSD because of "... the pain I have had to hold in for so many years...[.]" In July 2009 and May 2010 statements, the appellant reported that the Veteran's hypertension began in 1947 when he was employed at TVA, rather than asserting that the Veteran's disability began during service. In sum, the Board finds that there is no evidence of a heart disorder in service or within one year of service discharge. The threshold question therefore is whether there is sufficient medical evidence to establish an etiological link between the Veteran's diagnosed heart disorder and his period of active service. The preponderance of the evidence is against this aspect of the appellant's claim. The appellant has produced no competent evidence or medical opinion in support of the instant claim, the March 2009 VA examiner determined it is less likely than not that that the Veteran's heart disorder was etiologically related to his active service. Further, although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a heart disorder as directly related to the Veteran's period of active duty service. The benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 . Secondary Service Connection Service connection may be established on a secondary basis upon a showing that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310 (2006); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). During the course of the appeal there was an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection may be made. This had not been VA's practice, which suggests that the recent change amounts to a substantive change. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under the old version of the regulation. See VAOPGCPREC 7-2003 (Nov. 19, 2003). With respect to secondary service connection, the appellant contends that the Veteran's heart disorder was proximately due to his service-connected PTSD. Alternatively, she argues that this condition was aggravated by his service-connected anxiety disorder. In support of his claim, the Veteran submitted three separate statements from his private physician. In both an October 2006 and January 2008 statements, Dr. N. indicated the Veteran's PTSD symptoms caused his hypertension. Dr. N. stated in the October 2006 letter that "it is possible that a stress related disorder of any type could lead to an increase in blood pressure and may make a patient clinically hypertensive." Dr. N. noted that the symptoms due to the Veteran's PTSD had recently worsened. In the January 2008 statement, Dr. N. noted that the Veteran's PTSD symptoms "appear to be contributive to his development of hypertension." Finally, in a July 2008 letter, Dr. N. stated that the Veteran's PTSD "could have a significant effect on worsening his vascular disease by increasing his tendency towards hypertension, hyperlipidemia, heart attacks and strokes." In contrast, the record contains two VA medical opinions, dated March 2009 and May 2009, which found the Veteran's heart disorder was not caused by his service-connected PTSD. The March 2009 VA examiner noted that, based on a review of the claims folder, and interviews with the Veteran and the appellant, the record did not show that the Veteran's heart disorder was caused by his PTSD. Lastly, the examiner noted that "current medical literature does not support this claim of causation or aggravation of the diagnoses above due to PTSD." As noted in the April 2012 Memorandum Decision, the examiner did not specifically list which literature was being used to support his rationale. Further, he did not discuss the internet treatise, "PTSD and Physical Health," which was submitted by the appellant. Although the examiner did not address this article, for the reasons discussed below, it is not probative evidence in support of the appellant's claim. In addition, the May 2009 VA examiner noted that the Veteran had well controlled essential hypertension and that there was "no evidence that the PTSD caused worsening of his [hypertension]." The examiner also noted the Veteran had several typical risk factors for CAD, which would lead to congestive heart failure, such as high cholesterol, history of smoking, and a positive family history of heart disease. With regard to the examiner's statement regarding hypertension, it is not probative because it is a conclusory statement without an underlying rationale. However, his statement regarding the risk factors for CAD is probative because he explains that the Veteran had several risk factors. Lastly, the Board obtained a Veterans Health Administration (VHA) medical opinion in April 2013. The VA physician reviewed the entirety of the evidence, including the Veteran's service treatment records, VA and private treatment records, and the relevant medical literature, including that noted by the appellant and the Court in the April 2012 memorandum decision. Following a review of all relevant evidence, the VA physician found that the Veteran's hypertension was not caused by his PTSD, as PTSD was diagnosed many years following the initial diagnosis of PTSD. The VA physician further found the Veteran's hypertension was not aggravated by PTSD, noting the Veteran's hypertension was referred to as "essential hypertension," which means in general the cause of the elevation in blood pressure is not known. Finally, referring to the article on VA's website specifically mentioned by the appellant and the Court, the VA physician noted this article refers to a "vulnerability to hypertension," but stops short of concluding that hypertension is caused by PTSD. He also noted that he article stated that "existing research has not been able to determine conclusively that PTSD causes poor health." In deciding whether the Veteran's heart disorder was related to his PTSD, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The Board has considered the various statements by Dr. N. submitted on behalf of the Veteran. However, the etiological language contained in these statements is speculative and does not rise to the level of at least as likely as not. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinions expressed in terms of "may" also imply "may not" and are speculative). Service connection may not be based on resort to speculation or remote possibility. 38 C.F.R. § 3.102; Stegman v. Derwinski, 3 Vet. App. 228 (1992); Obert, 5 Vet. App. at 33. Furthermore, Dr. N.'s medical statements are inconsistent with the contemporaneous medical evidence. For instance, VA treatment records show that the Veteran's hypertension was well controlled by medication since its onset, even during the periods when the Veteran's PTSD symptoms were noted to be most severe. See, e.g., VA treatment records dated November 1999 to May 2009; see also May 2009 VA examination report. The Board accordingly affords these statements little probative weight in determining the etiology of the Veteran's heart disorder. Finally, the Board has considered the Veteran's and the appellant's own assertions that his heart disorder was due to or aggravated by this PTSD. The Veteran and the appellant are competent to discuss observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). There is nothing in the record that would cause the Board to find their assertions not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether the Veteran's psychiatric disorder caused or aggravated his heart condition, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Further, their assertions have been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Their statements, along with internet articles and brochures that were submitted in support of the current claim, are outweighed by the competent medical opinions of record. Lastly, in the appellant's brief before the CAVC, her attorney noted studies discussed in a rulemaking establishing atherosclerotic heart disease and other related disease as presumptive diseases related to the prisoner of war (POW) experience. See 69 Fed. Reg. 60.083, 60, 087 (Oct. 7, 2004) (Interim Final Rule). These studies are not constructively before the Board because they do not have a direct relationship to the appellant's claim. The CAVC has found that "...[e]ven when a document is generated by VA, it will not be considered constructively before the Board in a particular claimant's case unless the document has a direct relationship to the claimant's appeal." Monzingo v. Shinseki, 26 Vet. App. 97, 102 (2012). Further, "... to hold otherwise would essentially lead to any reports on diseases or injuries contained in VA libraries being deemed constructively before the Board in every case involving a claim arising from the disease or injury addressed in such reports; such an application of the constructive possession doctrine places an impossible burden on the Board-especially given its obligation to address the relevant evidence of record when providing reasons and bases." Id. In sum, the Board affords significant probative weight to the VA medical opinions of record, which determined the Veteran's heart disorders were not caused or aggravated by his service-connected PTSD. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a heart disorder on a secondary basis, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 . (CONTINUED ON NEXT PAGE) ORDER Service connection for a heart disorder is denied. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs