Citation Nr: 1331244 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-02 683 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for chest pain and palpitations, to include a heart disorder (chest or heart disorder). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from September 1978 to May 2005. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Veteran testified at a Board hearing at the local RO before the undersigned in February 2010. The Board previously remanded this issue for further development in September 2010. In September 2010, the Board also remanded the issues of increased ratings for erectile dysfunction, sleep apnea, and a scar on the left wrist for issuance of a statement of the case in compliance with Manlincon v. West, 12 Vet. App. 238. The RO issued a statement of the case addressing these matters in December 2010. However, the Veteran did not submit a substantive appeal. As such, these matters are no longer in appellate status. The Board notes that the Veteran submitted additional evidence after issuance of the most recent supplemental statement of the case in September 2011. In an August 2013 statement, the Veteran's representative waived RO consideration of this evidence pursuant to 38 C.F.R. § 20.1304(c). As a final preliminary matter, in additional to paper claims file, the Veteran also has an electronic (Virtual VA) paperless file. However, a review of the records in Virtual VA does not reveal any additional evidence pertinent to the issue on appeal. FINDING OF FACT A current chest or heart disorder is not shown to be causally or etiologically related to any disease, injury, or incident in service, and heart disease did not manifest within one year of the Veteran's discharge from service. CONCLUSION OF LAW The criteria for service connection for chest or heart disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). The Veteran was sent notice in July 2005 prior to the initial RO adjudication of the issue on appeal that fully addressed all notice elements. The letter advised the Veteran of the evidence and information necessary to substantiate his service connection claim as well as his and VA's respective responsibilities in obtaining such evidence and information. In the instant case, the appellant was never informed of how VA determines disability ratings and effective dates. However, as the instant decision denies service connection, no disability rating or effective date will be assigned. Accordingly, any absence of Dingess notice is moot. Therefore, no further development is required regarding the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this regard, the claims file contains the Veteran's service treatment records, post-service reports of private and VA treatment, VA examination reports and Board hearing testimony. The record shows that the RO has requested all identified private treatment records and either received such records or negative responses from the providers. Furthermore, the Veteran's hearing testimony and statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available additional outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2013) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the February 2010 Board hearing, the undersigned Veterans Law Judge adequately explained the claim on appeal and suggested evidence that may support this claim, including evidence that the Veteran might submit that may have been overlooked. The Veteran was also specifically asked questions concerning when he first began noticing symptoms as well as any treatment. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidence by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of issues and suggesting submission of evidence in the subsequent remand the Board issued to develop this claim. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Finally, the Board finds that there was substantial compliance with the September 2010 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, the Board in September 2010 directed the RO to obtain private treatment records from B.O., M.D. and to schedule the Veteran for a VA examination. Additional private treatment records from Dr. B.O were obtained by the RO as well as submitted by the Veteran. Further, the Veteran was afforded a VA examination in March 2011. The examiner was directed to provide an opinion as to whether it was at least as likely as not that any chest or heart disorder had its onset in service, was related to service, or was aggravated by service, which was done by the examiner. As the VA examination was prepared by a competent clinician who considered the Veteran's claims file and medical history in the report and provided an etiological opinion, complete with rationale, the Board finds that the examination is adequate to adjudicate the Veteran's claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board's remand also directed the examiner to provide an opinion as to whether any chest or heart disorder was due to or aggravated by a service-connected disability. However, the examiner did not offer a secondary opinion. Regardless, as the Veteran has never alleged that his chest or heart disability was secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310, this opinion was clearly asked in error. Importantly, the evidence of record is completely silent as to any causal relationship between a current chest or heart disorder and a service-connected disability. Thus, there is no prejudice to the Veteran for failure to obtain such opinion. Moreover, given the lack of any evidence, including any claims or statements by the Veteran, to support secondary service connection, a medical examination or opinion is not required. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). As such, no further examination or opinion is necessary. Accordingly, the Board finds that there has been substantial compliance with the prior Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). Analysis The Veteran is seeking service connection for a chest or heart disorder. Specifically, in his statements of record and at the Board hearing, the Veteran has asserted that his current heart disorder manifested in service as he began experiencing chest pain and palpitations in 1996 while on active duty that have continued to the present. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arteriosclerosis and cardiovascular-renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service treatment records show treatment for symptoms related to the Veteran's heart. In pertinent part, in December 1994, the Veteran presented with chest discomfort, but an x-ray at that time showed no active disease. He was subsequently recommended for a Holter monitor for chest palpitations. The Veteran underwent more testing in January 1995. The assessment was atypical chest pain and palpitations, rule out arrhythmia. It appears that testing revealed normal results at that time. However, in February 1996, the Veteran was seen again with complaints of heart palpitations of increasing frequency. A March 1996 Holter report showed that the record was consistent with his symptoms of palpitations and the Veteran could be having affects of supraventricular tachycardia (SVT). The final assessment was paroxysmal SVT and the Veteran was prescribed Verapamil and it was also noted that he had decreased his soda intake. Follow up treatment records are silent with respect to any more complaints pertaining to the heart and chest. Significantly, an August 2004 service examination showed that the heart, lungs and chest were evaluated as clinically normal. A subsequent notation by the examiner observed that the Veteran was on a Holter monitor for palpitations, but indicated no problems since "caffeine made worse". Moreover, a February 2005 service examination also showed that the heart, lungs and chest were evaluated as clinically normal. Further, a contemporaneous chest x-ray was also normal. Importantly, in both of his contemporaneous reports of medical history in August 2004 and February 2005, the Veteran expressly denied any pain or pressure in chest, palpitation or heart trouble. A follow up March 2005 treatment record showed that the Veteran's cardiovascular system was clinically evaluated as normal. After his retirement, the Veteran was afforded a VA examination in August 2005. The Veteran reported suffering from heart palpitations since 1996. He experienced dizziness and fatigue. The symptoms occurred intermittently, as often as 20 times, and lasting for a day. He reported 20 attacks in the past year. A chest x-ray was normal. After examining the Veteran, including performing an echocardiogram and pulmonary function tests, the examiner found that there was no pathology to render a diagnosis for the claimed heart palpitations or chest pain. In December 2008, the Veteran presented at the VA to establish primary care. The Veteran again reported palpitations. However, physical examination of the heart was normal. In a March 2010 statement, a private provider, Dr. J.G., stated that the Veteran had a history of palpitations noted in 1996. His Holter monitor indicated SVT and he was given Verapamil. The examiner observed that the etiology of the Veteran's palpitations was not clearly indicated in the notes, but his complaints of palpitations clearly started on active duty and the Veteran was currently being evaluated by Dr. B.O, a local cardiologist. Although the Veteran indicated seeing Dr. B.O. since January 2003, treatment records submitted by Dr. B.O. only date back to February 2010. In this regard, the February 2010 treatment record clearly indicates that this was an initial consult per the request of Dr. J.G. At that time, the Veteran indicated that the episodes dated back to 1981. Based on an abnormal echocardiogram in October 2010, the Veteran was diagnosed with cardiomyopathy, idiopathic, palpitations and abnormal cardiovascular function study. Although the Veteran reported a history of palpitations since 1981, Dr. B.O. did not provide any etiological opinion for the diagnosed conditions. On remand, the Veteran was afforded a VA examination in March 2011. The claims file was reviewed. The Veteran reported palpitations that began while on active duty around 1982 and that he continued to have daily palpitations. The examiner observed findings from the August 2005 VA examination as well as the March 2010 letter from Dr. J.G. Previous echocardiograms were reviewed and summarized as well as service treatment records. A March 2011 chest x-ray was normal. A May 2011 addendum indicated that oresults from the Holter monitor showed an abnormally low heart rate variability with no indication for further workup as it was merely a marker of cardiovascular risk with known mildly reduced ejection fraction; otherwise normal Holter. The examiner diagnosed idiopathic cardiomyopathy and opined that it was less likely as not caused by or related to his service as service medical records were negative for documentation of cardiomyopathy and the Veteran had a normal echocardiogram in August 2005 after being discharged from service. The examiner also observed that the current Holter did not show any evidence of short runs of SVT that the Veteran was noted to have in service. Of note, the VA examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, he provided an etiological opinion, complete with the rationale described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Consequently, the Board assigns great probative value to the March 2011 VA examination. After considering the totality of the evidence of record, the Board finds that service connection for chest or heart disorder is not warranted as there is no competent evidence linking any disability to any disease, injury, or incident in service, and no evidence of heart disease within one year of service. Indeed, although the Veteran was seen for heart palpitations in service in 1995 and 1996 and was diagnosed with SVT, follow up service treatment records, including his retirement service examination, are silent with respect to any further complaints. Importantly, the Veteran's chest, lungs and heart were evaluated as clinically normal at the time of his retirement examination and he expressly denied any chest pain or palpitations. The Board observes that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Citing Buchanan and Jandreau, the Federal Circuit reiterated that it had previously and explicitly rejected the view that competent medical evidence is required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In the instant case, the Veteran is competent to report in-service symptoms as well as pertinent symptomatology since service. However, he is not competent to directly link any current chest or heart disability to service as medical expertise is required. In this regard, the question of causation involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's own opinion is nonprobative evidence. See Davidson, supra; Jandreau, supra; see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board recognizes that the Veteran has reported continuing palpitations since service, which has been documented in the service treatment records and shortly following service at the 2005 VA examination. However, the competent medical evidence, including the March 2011 VA examination, clearly shows that the in-service disability of SVT resolved given the lack of treatment for many years in service following the diagnosis in 1996 up to his retirement in 2005 and the normal findings at the August 2005 VA examination. Moreover, given the lack of objective findings shortly following service at the August 2005 VA examination, the current disability of idiopathic cardiomyopathy has been found to not be related to service. After reviewing the claims file and based upon the findings of the examination, the highly probative March 2011 VA examination found that the Veteran's current heart disability, diagnosed as idiopathic cardiomyopathy, was not related to the in-service symptoms and provided a detailed rationale for this opinion. Again, the examiner also determined that the Veteran did not currently suffer from SVT, diagnosed while in service. When weighing the competent medical evidence, the Board must find that the March 2011 VA examination has more probative value than the Veteran's assertions of pertinent symptomatology. The Board recognizes that the March 2010 private opinion indicated that the Veteran had palpitations beginning in service. However, again, this opinion did not address the normal findings immediately following retirement in 2005. Moreover, the examiner did not offer a clear etiological opinion on the Veteran's current disability of idiopathic cardiomyopathy. Thus, given these deficiencies, the Board must find that the March 2010 private opinion has minimal probative value and is outweighed by the more probative March 2011 VA examination. In conclusion, based on the analysis above, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for chest or heart disorder. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for chest or heart disorder, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs