Citation Nr: 1331221 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 13-00 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Service connection for heart disease. ATTORNEY FOR THE BOARD Brian E. Flannery, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1989 to May 1997 and subsequently served in the Navy Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied the benefits sought on appeal. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. As such, the electronic claims file and the paper claims file are both fully considered during this appeal. FINDINGS OF FACT 1. The Veteran did not incur or aggravate his heart disease during a period of active duty service. 2. The Veteran did not manifest heart disease within a year of active duty service. 3. The Veteran did not incur or aggravate heart disease during ACDUTRA. 4. The Veteran did not suffer an acute myocardial infarction, or a cardiac arrest during a period of INACDUTRA. CONCLUSION OF LAW The criteria for the establishment of service connections for heart disease are not met. 38 U.S.C.A. § §1112, 1117, 1131, 5103, 5103(a), 5107 (West 2002); 38 C.F.R. § §3.102, 3.159, 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties under Veterans Claims Assistance Act of 2000 (VCAA) A. Duty to Notify VA satisfied its duty to notify the Veteran pursuant to the VCAA. See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary, or would be of assistance, in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice required by the VCAA can be divided into three elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the instant case, a letter was sent to the Veteran in September 2010 prior to the initial adjudication of his claim. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. As the content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board concludes that VA satisfied its duties to notify the Veteran. B. Duty to Assist VA has also satisfied its duty to assist the Veteran in the development of his claim. First, VA satisfied its duty to seek relevant records. VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO associated the Veteran's service treatment records, the Navy Reserve treatment records, and VA treatment records with the claims file. Significantly, the Veteran has indicated that his Navy Reserve records have not been considered as part of this appeal. The Board notes that in January 2013 the RO provided a Supplemental Statement of the Case specifically discussing the Nay Reserve treatment records. The Board further notes that the Navy treatment records have been associated with the Veteran's claims file. Thus, the Board concludes that VA has made every reasonable effort to obtain all records relevant to the Veteran's claim. Second, VA satisfied its duty obtain a medical opinion when required. The duty to assist also includes providing an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The evidence of a link between current disability and service must be competent. Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The types of evidence that 'indicate' that a current disability 'may be associated' with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83. The threshold for finding a link between current disability and service is low. Id.; Locklear v. Nicholson, 20 Vet. App. 410 (2006). In December 2010, VA provided the Veteran a medical examination and obtained a medical opinion addressing the Veteran's Ulcer issues. This condition unlike the claimed heart disease, had evidence of an in-service incurrence or aggravation of a disease or injury. Since there is no evidence or any indication of an in-service incurrence or aggravation of a disease or injury relative to heart disease, there is no requirement to obtain a medical examination. Moreover, while mindful that the Veteran has not been afforded a Board hearing in support of his claim, the Board observes that he has expressly waived his right to such a proceeding. See VA Form 9, December 2012. Accordingly, the Board is satisfied that the Veteran's due process rights have not been compromised. Having thus established that VA has satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §5103(a), § 5103A , or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced as a result of the adjudication of his claims. II. Merits of the Claim In August 2010 the Veteran filed his claim for "heart disease." The record reflects that there was no in-service incurrence or aggravation of a disease or injury , there was no manifestation of a chronic disease within one year of service, and the Veteran's condition did not incur and was not aggravated during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Therefore the claim for service connected heart disease is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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-the so-called "nexus" requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The record reflects that in January 2004 the Veteran first saw a private medical provider about his heart condition. This was the first time the Veteran was treated for any heart related disease. At the time of separation from the active duty Navy, in May 1997, a Report of Medical Examination reflects that the Veteran had a normal heart with blood pressure of 110/70. The Report of Medical History also shows a normal heart with the blood pressure of 120/90. This is consistent with all other evidence in the Veteran's service treatment records, and all other evidence in the file, in that there was no in-service incurrence of heart disease while the Veteran was in the active duty Navy. Rather the evidence is clear that the Veteran's heart disease first manifested in January 2004 which is over six years after the Veteran separated from the active duty Navy. Therefore his heart disease did not meet the in-service incurrence or aggravation of a disease or injury requirement. The Board further notes that service connection for certain organic diseases of the nervous system may also be established based on a legal "presumption" by showing that such had manifested to a degree of 10 percent or more within one year of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2011). The record fails to show any evidence that the Veteran's heart disease manifested within one year of separation from service. As stated above it was not until over six years after service that Veteran first showed his heart condition. Therefore the Veteran does not qualify for service connection of heart disease on a presumptive basis. The Veteran has indicated his disagreement based on the assertion that the RO did not consider his Navy Reserve service treatment records. In response the RO provided a January 2013 Supplemental Statement of the Case which specifically identified the Veteran's Navy Reserve service treatment records and explained why the claim of heart disease is not service connected. The Board does note that the Veteran's Navy Reserve service treatment records have been associated with the file, and finds that such records do not support service connection for heart disease. Service connection is warranted for disability resulting from personal 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, during a period of war. The United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated. For purposes of the above, "Active Military or Naval, or Air Service" includes * active duty; * any period of active duty for training (ACDUTRA) during which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty; and * any period of inactive duty training (INACDUTRA) during which the individual was disabled or died (A) from an injury incurred in or aggravated in the line of duty or (B) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. See 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2012); see also Biggins v. Derwinski, 1 Vet. App. 474 (1991). Active duty encompasses the Regular Forces including the Army, Air Force, Navy, Marine Corps, and Coast Guard other than active duty for training See 38 U.S.C.A. §§ 101(10),(21) (West 2002); 38 C.F.R. § 3.6(b) (2012). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes. See 38 U.S.C.A. §§ 101(10),(22) (West 2002); 38 C.F.R. § 3.6(c) (2012). Generally, this refers to the 15 days of required annual training a Reservist or member of the National Guard is required to perform. INACDUTRA includes duty (other than full-time) prescribed for Reserves, voluntary special duties authorized for reserves in connection the training or maintenance activities of the unit to which they are assigned. See 38 U.S.C.A. §§ 101(10),(23) (West 2002); 38 C.F.R. § 3.6(d) (2012). Generally, this refers to the annually required 48-hour drill periods or 12 weekend drills a reservist or member of the National Guard is required to perform. In turning to the Veteran's claims file, including the Veteran's Navy Reserve service treatment records, when the Veteran commenced his Navy Reserve service his heart was in good condition. A May 2002 Report of Medical Examination shows a normal heart condition. Further an April 2003 Annual Certificate of Physical Condition shows no medical issues. It was not until an April 2004 Annual Certificate of Physical Condition that the Veteran first notified the military he had a heart condition which might restrict his performance on active duty or prevent his mobilization. This record is consistent with the January 2004 private medical records evidencing the initial manifestation of the Veteran's heart condition. Based on the above, the record reflects that the Veteran first incurred heart disease in January 2004. The record fails to show any evidence that the Veteran was serving his 15 days of required annual training or in any other way serving in an ACDUTRA capacity in January 2004. The evidence that the Veteran first sought treatment from a private medical provider further supports the finding that the Veteran was not in ACDUTRA status at the time he first showed symptoms of heart disease. Therefore the Veteran's heart disease did not incur and was not aggravated in the line of duty during a period of ACDUTRA. The Veteran's private medical records further do not show that he ever suffered an acute myocardial infarction, or a cardiac arrest. Therefore the Veteran does not qualify for service connection based on a period of INACDUTRA for his heart disease. In reaching these conclusions, the Board remains sympathetic to this Veteran and does not question the sincerity of his belief that his condition is directly service-related. The Board does understand that the Veteran was under a Reserve obligation at the time his heart disease first manifested. However the disease did not incur during a period of ACDUTRA and the Veteran did not suffer an acute myocardial infarction, or a cardiac arrest during a period of INACDUTRA. In light of the foregoing, the Board concludes that the preponderance of the evidence shows that the Veteran does not qualify for service connection for his heart disease. As such, while mindful of the benefit-of-the-doubt rule, the Board finds that rule is not for application and that service connection must therefore be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Service connection for heart disease is denied. ____________________________________________ Cheryl L. Mason Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs