Citation Nr: 1331316 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-16 338 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a cardiac disability. 2. Entitlement to service connection for a respiratory disability, to include as secondary to a cardiac disability. 3. Entitlement to service connection for residual surgical scars, to include as secondary to a cardiac disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Haddock, Associate Counsel INTRODUCTION The Veteran had active naval service from December 1950 to October 1952. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In connection with his appeal, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO in April 2010. A transcript of that hearing has been associated with the claims file. The Board has reviewed the physical claims file and the Virtual VA electronic claims file. This case has been previously before the Board and in December 2010, the Board denied the issue currently on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims. In an October 2011 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the Joint Motion. In May 2012 the case was remanded by the Board for additional development. The case has now been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. A cardiac disability is not etiologically related to the Veteran's active service and was not present within one year of his separation from active service. 2. A respiratory disability was not caused or permanently worsened by a service-connected disability and is not otherwise related to the Veteran's active service. 3. Residual surgical scars were not caused or permanently worsened by a service-connected disability and are not otherwise related to the Veteran's active service CONCLUSIONS OF LAW 1. A cardiac disability was not incurred in or aggravated by active service and the incurrence or aggravation of a cardiac disability during active service may not be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. A respiratory disability was not incurred in or aggravated by active service and is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 3. Residual surgical scars were not incurred in or aggravated by active service and are not proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA will assist a claimant in obtaining evidence necessary to substantiate a claim, but is not required to provide assistance to a claimant if there is no reasonable possibility that assistance would aid in substantiating the claim. VA must also notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). As part of the notice, VA must specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Notice to a claimant should be provided at the time or immediately after, VA receives a complete or substantially complete application for benefits. 38 U.S.C.A. § 5103(a) (West 2002); Pelegrini v. Principi, 18 Vet. App. 112, (2004). The timing requirement applies equally to the effective date element of a service connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record shows that the Veteran was mailed a letter in February 2008 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The February 2008 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claims. The Board also finds the Veteran has been afforded adequate assistance in response to his claim. The Veteran's service medical records are of record. Private treatment notes have been obtained. The Veteran has been provided appropriate VA examinations. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any outstanding evidence. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a Veteran served for at least 90 days during a period of war and manifests certain cardiac disabilities to a degree of 10 percent within one year from the date of termination of that service, the cardiac disability shall be presumed to have been incurred or aggravated in service, even though there is no evidence of the disability during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. For certain chronic diseases, set forth in 38 C.F.R. § 3.309, to include certain cardiac disabilities, continuity of symptomatology is required when the condition noted during service is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. §§ 3.303(b), 3.309(a) (2012); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a) (2012). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also service-connected. 38 C.F.R. § 3.310(a) (2012); Allen v. Brown, 7 Vet. App. 439 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by VA. VA shall consider all information and lay and medical evidence of record with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Service Connection for a Cardiac Disability The Veteran claims that he has a cardiac disability as a result of his active service. Specifically, the Veteran claims that his current cardiac problems are related to the systolic apical heart murmur noted to be present at the time of his October 1952 separation examination. A review of the service medical records shows that at the time of his entrance examination in December 1952, the Veteran was diagnosed with moderate hypertension and was granted a conditional medical waiver and enlisted into active service. There is no other indication from the service medical records that the Veteran had any other instances of high blood pressure during active service or that he was ever treated for hypertension while in active service. Further review of the service medical records is silent for treatment for or a diagnosis of any cardiac disability while the Veteran was in active service. A review of the October 1952 separation examination report shows that at separation, the Veteran was noted to have a systolic apical murmur that was noted to be best heard after exercise and on expiration. The murmur was noted to be asymptomatic and there was no pertinent history related to the murmur. The examiner found that the murmur was probably functional and not considered disabling. The Veteran's blood pressure at separation was noted to be 118/78. A review of the post-service medical evidence shows that the Veteran was noted to have a history of heart murmur in a November 1979 private treatment note. In April 1996, the Veteran was noted to have 3/6 regurgitant systolic murmur at the apex, which radiated to the left axial. At that time, it was also noted that the Veteran had a history of having a heart murmur for many years. In May 1997, the Veteran was seen for complaints of shortness of breath and was noted to have a prominent systolic murmur at that time. However, there was no acute cardiopulmonary disease noted at that time. In June 2001, the Veteran was seen for a cardiology consultation for evaluation. At that time, the examiner noted a recent echocardiogram report in which it was noted that the Veteran had mirtal valve prolapse (MVP) with moderately severe to severe regurgitation. At that time, it was noted that the Veteran should consider surgical consultation for the possibility of mitral valve repair. In July 2001, the Veteran underwent mitral valve replacement surgery. At a June 2010 VA examination, the examiner reviewed the claims file. The Veteran reported to the examiner that he had known that he had a heart murmur since approximately 1950, but that he first experienced symptoms of a cardiac disability in 2001. He reported that he was out hunting at an elevation of approximately 6000 feet and began to experience shortness of breath. He reported that he was sent to a cardiologist for evaluation and was told, at that time, that he had a valve leak. Based on an examination of the Veteran, a thorough review of the record, and the history provided by the Veteran; the examiner diagnosed mitral valve replacement for mitral valve regurgitation, secondary to MVP with bioprosthetic mitral valve, atrial fibrilation secondary to mitral valve disability, solitary nodule in the peripheral lung fields, and mid-sternotomy residual scar. The examiner was also asked to provide an opinion regarding the etiology of any currently present cardiac disability. The examiner opined that it was not as likely as not that the systolic murmur noted during the Veteran's active service was reflective of MVP which ultimately developed into mitral valve regurgitation. The examiner noted that the fundamental question in the case was whether the Veteran's systolic murmur, which was described as having been heard after exercise and expiration, could reasonably be seemed to indicate early MVP. The examiner stated that if the Veteran's murmur heard in service timeframe was MVP, then a late systolic murmur and midsystolic click would have been recorded, even if not understood. The examiner noted that he had significant doubts that the syndrome of MVP was recognized to any great extent by any group of physicians in the 1950s. However, the examiner noted that it was significant that the description of the Veteran's murmur noted at separation was not that of a late systolic murmur, did not note that there was substantial radiation into left axilla, and did not note a mid-systolic or early systolic click or other form of abnormal sound. The examiner noted that classic findings of MVP would involve the presence of a mid-systolic click and occassionally an early systolic click and a late systolic murmur and that the murmur noted in the Veteran's service records was not similar to the MVP murmurs consistent with medical knowlegde and literature at the time. The examiner also opined that because the Veteran was noted to be hypertensive during service, that would have increased the probability that a click would have been present if MVP was diagnosable in service. The examiner noted that hypertension involves an increase in systemic vascular resistance which characteristically increased mitral regurgitation such that prolapse, if present, was more likely than not to be recognized by the presence of a mid-systolic, or even an early systolic, click. The examiner further noted that the greater degree of the hypertension the more likely the so-called mid-systolic click would be heard early in systole and there was no indication from the record suggesting that a click was ever heard at those times or that the murmur increased in intensity. The examiner opined that fact would make the likelihood of MVP at those times unlikely and made it unlikely that the murmur in service was indicative of MVP in the 1950 to 1952 timeframe, while the Veteran was in active service, and there was no evidence to suggest the presence of MVP within one year of the Veteran's separation from active service. The examiner further noted, that in fairness to all concerned, it was doubtful that the physicians examining the Veteran at the time of his 1952 separation examination were schooled in knowledge of MVP. The examiner noted that a review of current literature on MVP showed that the first literature found on the subject was from a 1963 article, well after the Veteran's separation examination in 1952. However, the examiner noted that notwithstanding that, the examiner would apply the knowledge that we do have; the presence of a systolic click in late systole, the radiation of a murmur of mitral regurgitation toward the left axilla, and the presence of hypertension which would in all probability greatly accentuate the ausculatory findings referable to MVP; and note that the absence of those findings reaffirmed the opinion that it was not at least as likely as not that the Veteran's murmur noted in active service was indicative of the Veteran's current diagnosis of MVP. In March 2013, the Veteran's claims file was returned to the June 2010 VA examiner for an addendum opinion. At that time, the examiner reviewed the record and thoroughly documented all the pertinent records. The examiner opined that it was not at least as likely as not that the Veteran's current cardiovascular disorders began or occurred in active service, were related to his active service, or developed within one year of his separation from active service. The examiner noted that when MVP was present, there was a systolic click present in addition to a systolic murmur. The examiner noted that according to the service record, the Veteran's murmur was described as apical and probably functional. The examiner noted that had a click been present at that time, it would not likely have been described as a click, but rather, as a extra-cardiac sound, which was the terminology used at that time. The examiner explained that clicks were not recognized as due to MVP until 1963 and the sound (click) was thought to be extra-cardiac. The examiner noted that if the sound had been present, whether termed as extra-cardiac or click, it would have been documented. As no such note was made, the examiner found no convincing evidence that the murmur noted in service represented muyxomatous disease of the mitral valve and MVP. The examiner further noted that all of the Veteran's other diagnoses, to include the atrial fibrillation, were due to the current diagnosis of MVP and therefore did not begin during active service, did not develop within one year of separation from active service, and were not related in any way to any event in active service. The Board finds that the June 2010 VA examination, when combined with the March 2013 VA addendum, is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds it significant that there is no indication from the numerous private treatment notes of record that any of the Veteran's various private providers have linked his current cardiac disabilities to his active service, to specifically include the systolic apical murmur noted on the October 1952 separation examination report. Further, while the Veteran might sincerely believe that his current cardiovascular disabilities are related to his active service and lay persons are competent to provide opinions on some medical issues, the issue of whether the Veteran's current cardiovascular disabilities are related to a systolic apical murmur noted at his separation from active service over 50 years ago is a complex medical issue and falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, there is no evidence that the Veteran's MVP was present within one year of his separation from active service. In fact, the Veteran has consistently reported that he did not experience symptoms of a cardiac disability until approximately 2001, almost 50 years following his separation from active service. Therefore, presumptive service connection is not applicable in this case. In sum, the Veteran was noted to have a systolic apical murmur that was not considered disabling at the time of his separation examination in October 1952. The Veteran was diagnosed with MVP and underwent mitral valve replacement surgery in 2001. The VA examiner has competently opined that the Veteran's current cardiovascular disabilities are not etiologically related to his active service and were not present within one year of his separation from active service. The Veteran has not presented evidence of continuity of symptomatoloy of a cardiac disability since discharge from service, so as to supprt a grant of service connection on this basis. Furthermore, the Veteran has not submitted any contrary competent medical evidence to show that the current MVP is related to his service. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a cardiac disability is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service Connection for a Respiratory Disability and Residual Surgical Scars The Veteran has specifically asserted that his respiratory disability and residual surgical scars are secondary to his cardiac disabilities. The Board notes that a claim for secondary service connection requires an established service-connected disability. As the claim for service connection for a cardiac disability has been denied, the Board finds no legal or factual merit to claims of entitlement to seconday service connection for a respiratory disability and residual surgical scars. Further, the evidence does not show, and the Veteran has not asserted, that the Veteran has a respiratory disability or residual surgical scars that were incurred in or otherwise related to his active service. In fact, the Veteran's October 1952 separation examination report is silent for reports of a respiratory disability or scars during active service and the Veteran's chest and lungs were noted to be clinically normal upon examination and there were no scars or other identifying marks noted following physical examination. Therefore, the Board finds that service connection is not warranted for a respiratory disability or residual surgical scars on a direct basis. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for a respiratory disability and residual surgical scars is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a cardiac disability is denied. Entitlement to service connection for a respiratory disability is denied. Entitlement to service connection for residual surgical scars is denied. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs