Citation Nr: 1330128	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  12-15 432	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to service connection for ischemic heart disease.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

David S. Nelson, Counsel


INTRODUCTION

The Veteran had active service from April 1968 to June 1970.

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.  This case was previously before the Board in June 2013, at which time the Board reopened the claim of service connection for heart disease and remanded that issue for additional development.

The September 2011 rating decision also denied service connection for atrial fibrillation.  The rating decision specifically informed the Veteran that "[w]e are taking this claim for atrial fibrillation as a separation condition from the previous claims(s) for a heart condition.  If your intention was otherwise, please advise this office."  The Veteran did not advise otherwise, and he specifically limited his appeal, in the notice of disagreement and substantive appeal, to the issue involving ischemic heart disease.  Therefore, the Board finds that the issue of service connection for atrial fibrillation is not on appeal at this time.

In the same manner, the Board notes that the September 2011 rating decision denied the Veteran's application to reopen a claim of service connection for hypertension.  The Veteran has not expressed disagreement with that part of the September 2011 RO decision, and the issue of service connection for hypertension is not on appeal at this time.

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).


FINDING OF FACT

The Veteran does not have ischemic heart disease.

CONCLUSION OF LAW

Service connection for ischemic heart disease is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a).

Duty to Notify

Proper notice from VA must inform the claimant and representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability).  Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included.  Id.

The Veteran was notified via letters dated in March 2011, June 2011, and August 2011 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence.  He also was notified of how VA determines disability ratings and effective dates if service connection is awarded.  

Duty to Assist

Service treatment records are associated with the claims file, as are identified VA and private medical records.  In July 2013 VA obtained an opinion that addresses the medical matters presented by this appeal.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the July 2013 VA opinion obtained in this case is more than adequate.  The opinion considered the pertinent evidence of record and provided a rationale for its conclusions.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met.  38 C.F.R. § 3.159(c)(4).

The Board finds that there has been substantial compliance with its June 2013 remand instructions.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  Significantly, as noted, in July 2013 an opinion was obtained that addressed the medical matters presented by this appeal and contained answers to specific questions enumerated in the June 2013 remand.  A June 2013 letter to the Veteran notified him that he must return the supplied VA Form 21-4142, Authorization and Consent to Release Information (VA Form 21-4142), for any treatment records he wished to have VA obtain for him.  No VA Form 21-4142 authorizing VA to obtain records was submitted.  Finally, VA medical records available through the Compensation and Pension Records Interchange (CAPRI) were uploaded to the Veteran's electronic Virtual VA folder.

The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding.  VA's duties to notify and assist are met, and the Board will address the merits of the claim.

Applicable Laws-Service connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty.  38 U.S.C.A. § 1110; 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.  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).  The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic at 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  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).

To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection for certain specified chronic diseases, such as coronary artery disease, may be established on a presumptive basis by showing that such disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.

Ischemic heart disease is subject to presumptive service connection for herbicide exposed Veterans.  Exposure to herbicides, including Agent Orange, is presumed for Veterans who served in Vietnam between January 9, 1962, and May 7, 1975.  38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  The Veteran was present in-country during this time, and is therefore presumed exposed.

Notwithstanding the foregoing presumption provisions, a claimant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation.  Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994).

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a) (West 2002). 
The Board notes that although all the evidence has been reviewed, only the most salient and relevant evidence is discussed below.  See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence).

Analysis

Service treatment records reveal no complaints or diagnoses relating to ischemic heart disease.

Private medical records show that in February 2011 the Veteran reported chest pain of gradual onset over the prior two months.  He also reported dyspnea on exertion.  A chest X-ray was noted to be "ok" and an echocardiogram disclosed marked left atrial enlargement, trace of mitral regurgitation, mild tricuspid regurgitation, and mild pulmonary hypertension.  The ejection fraction was 50 percent.  A Cardiolite stress test showed no myocardial ischemia.  Myocardial perfusion imaging was negative for inducible ischemia.

At a June 2001 VA examination the Veteran was diagnosed as having "ischemic heart disease/non-obstructive coronary artery disease."  The examiner referenced a June 2011 chest X-ray that showed that the Veteran's heart size was within the upper limits of normal, and an echocardiogram dated in February 2011, which showed 50 percent [ejection fraction].  The examiner noted that there were no records to review and that the Veteran had brought no records.  The examiner stated that the accuracy of the diagnoses was limited.

VA treatment records dated from March to November 2012 show that the Veteran was evaluated in October 2012.  The active problem list and diagnoses included "[coronary artery disease] [echocardiogram]: 2/2011: Dr. McGowan, [ejection fraction] 50%. [Myocardial perfusion imaging]: 2/2011: neg[ative] for reversible ischemia."

A July 2013 VA examiner indicated that, as for the Veteran's "nonobstructive coronary artery disease," there appeared to be no objective medical testing upon which that diagnosis had been made.  The examiner also stated that while acknowledging that the Veteran may have at some time prior to February 2011 undergone a coronary artery angiogram, a thorough review of available evidence of record revealed no coronary angiogram (heart catheterization) results.  The examiner went on to indicate that it could be determined, based on records subsequent to the 2011 timeframe, that there had been no specific treatment rendered for any coronary artery disease.  It was noted that the Veteran had undergone no bypass surgeries, angioplasty, or stent placements with regards to any obstructive coronary artery disease.  The examiner also indicated that the Veteran's shortness of breath and fatigue were likely related to the Veteran's non-ischemic heart disease, including atrial fibrillation.  The examiner observed that the Veteran had undergone a myocardial perfusion and stress test in February of 2011 that specifically noted findings that were negative for ischemia under stress.  The examiner indicated that there was no basis in the available evidence to warrant a diagnosis of ischemic heart disease or coronary artery disease.

The evidence of record contains an opinion favorable (June 2011 VA examiner) to the Veteran's service-connection for ischemic heart disease claim and a July 2013 VA opinion that rejects the Veteran's claim.

Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).  Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  The professional credentials and experience of opinion providers are properly considered in assigning probative value.  Sklar v. Brown, 5 Vet. App. 140, 146 (1993).  A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment.  Harris v. West, 203 F. 3d 1347, 1350-51 (Fed. Cir. 2000).  "[M]ost of the probative value of a medical opinion comes from its reasoning."  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  

With these considerations in mind, the Board finds that the favorable opinion from the June 2011 VA examiner has less probative value than the July 2013 VA examiner's opinion.  While the June 2011 VA examiner indicated that the Veteran had ischemic heart disease, at the conclusion of the report the June 2011 VA examiner acknowledged that the "accuracy" of the diagnosis (his own diagnosis) was limited.  On the other hand, the July 2013 VA examiner unequivocally noted that there was no objective medical testing upon which the Veteran's diagnosis of ischemic heart disease had been made.  In this regard, the Board observes that the June 2011 VA examiner did not have the Veteran's medical records at the time he[she] made the diagnosis of ischemic heart disease and therefore did not comment upon the Veteran's February 2011 diagnostic testing.  The February 2011 Cardiolite stress test and myocardial perfusion imaging findings and results was the core of the July 2013 VA examiner's rationale, was the foundation for the opinion offered, and carries great probative weight in this case.  

While not as extensive as the July 2013 VA examiner's opinion, the Board notes in passing that an August 2011 VA examiner also stated that there was no objective medical testing upon which the Veteran's diagnosis of ischemic heart disease had been made. and claims file and found no objective medical evidence supporting a diagnosis of ischemic heart disease.

The Veteran's assertions that he has ischemic heart disease has been considered.  To the extent that this is an opinion, the Board finds his statement is not competent evidence.  The Veteran is competent to report symptoms such as chest pain and shortness of breath.  Nothing in the record, however, demonstrates that the Veteran received any special training or acquired any medical expertise in diagnosing heart disorders.  See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012).  Whether he has a specific type of heart disease is not within the realm of knowledge of a layperson.  As already discussed, diagnostic tests and interpretation of those tests by a medical professional are probative of whether a heart condition exists.  This tends to show that diagnosing a heart condition is a complex matter and not determinable merely by observation of the senses.  For these reasons, the Board finds the Veteran's lay diagnosis is not competent evidence in this regard.  

The preponderance of evidence is against a finding that the first element of a service connection claim for ischemic heart disease has been met.  Therefore the appeal must be denied.  Brammer v. Derwinski, 3 Vet. App. 223. 225 (1992).  There is no reasonable doubt to be resolved as to this issue.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Service connection for ischemic heart disease is denied.




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



Department of Veterans Affairs