Citation Nr: 1331760 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 07-27 856A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for hypertension. WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from January 1967 to July 1969. This matter came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The appeal was remanded in March 2010 to afford the Veteran a hearing, and in October 2010 and March 2012 for development of the record. While the appeal was most recently in remand status, the agency of original jurisdiction (AOJ) granted the Veteran's claim of entitlement to service connection for asthma. As such, the Board need not address that claim. FINDINGS OF FACT 1. The veteran canceled a scheduled VA examination, and good cause for his failure to report for the scheduled examination is not shown. 2. A heart disorder was not manifest in service or within one year of separation, and is unrelated to service. 3. Hypertension was not manifest in service or within one year of separation, and is unrelated to service. CONCLUSIONS OF LAW 1. Entitlement to service connection for a heart disorder is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2013). 2. Entitlement to service connection for hypertension is not warranted. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.655 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. A letter dated in September 2006, prior to the adjudication of the Veteran's claim, discussed the evidence necessary to establish service connection. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. He was also advised of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised the Veteran of the status of his claim. In November 2010 the AOJ sent a letter indicating that information from the Long Beach VA Medical Center reported that the Veteran had failed to report for scheduled examinations. He was asked to advise the AOJ whether he was willing to submit to examinations. Moreover, during a December 2012 telephone conversation, the Veteran was advised of the consequences of failure to submit to VA medical examinations related to his appeal. The Board finds that the content of the notice provided to the Veteran fully complied 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 has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect to VA's duty to assist, VA treatment records and private treatment records have been obtained and associated with the record. A VA examination has not been conducted. An examination was scheduled subsequent to the Board's October 2010 remand; the Veteran canceled this examination and did not request to be rescheduled. As such the Board is compelled to evaluate the claim on the existing record. See 38 C.F.R. § 3.655(b). The Veteran also was afforded a hearing before a Veterans Law Judge (VLJ) during which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. 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. Here, the VLJ fully explained the issues on appeal during the hearing and asked questions specifically regarding the elements necessary to establish the benefits sought. Significantly, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the evidence necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the evidence necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board acknowledges that the VLJ who presided over the Veteran's hearing is no longer employed by the Board and will not decide this appeal. However, the Veteran was advised of this and was offered an opportunity to testify before another VLJ. He declined. The Veteran has not otherwise identified any additional evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis The Veteran seeks service connection for a heart disorder and hypertension. He alleges that the claimed heart disorder is related to high doses of steroids he was given during service for his asthma. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. §§ 1110 (wartime service), 1131 (peacetime service); 38 C.F.R. § 3.303. 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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence or aggravation of hypertensive vascular disease may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). Service treatment records indicate that the Veteran was admitted to the U.S. Naval Hospital at Da Nang in April 1969 with a diagnosis of bronchial asthma. He was subsequently transferred to the Naval Hospital at Long Beach, California. Allergy testing reports indicate sensitivity to various allergens. A medical board report indicates that various medications were prescribed in attempt to control the Veteran's symptoms, but that he was eventually found to be unfit for retention. At that time, no other diagnoses were noted. In his August 2006 claim, the Veteran stated that the medication he took during service for his asthma affected his heart, and that he suffered from atrial fibrillation and high blood pressure. In September 2006 the Veteran wrote that he had taken prednisone prior to service. He indicated that while in Vietnam, he was prescribed a much higher dose, one per hour for flare ups. He stated that in about 1970, he read that prednisone was a steroid and attacked the heart; he indicated that in about 1974 he was seen for a heart condition. He related his belief that service aggravated an existing problem. Private medical records reflect that the Veteran is prescribed medication for hypertension and that he has cardiac arrhythmia. At his Board hearing in August 2010, the Veteran testified that he was given prednisone in Vietnam and was told to take it once per hour. He indicated that prednisone was a steroid that ruined the heart, and that it also caused hypertension. He stated that none of his medical providers had told him that there was a relationship between prednisone and heart problems, but that he had discovered it through his own research. In October 2010, the Board determined that examinations were necessary to determine the etiology of the Veteran's claimed heart disorder and hypertension. While the appeal was in remand status, the Veteran was scheduled for a VA examination. In November 2010 the AOJ contacted the Veteran and noted that it had been advised that the Veteran did not report for examinations scheduled in October 2010. He was asked to contact the AOJ and advise whether he was willing to appear for the necessary examinations. In December 2012 the Veteran was telephonically contacted by AOJ personnel. A Report of General Information indicates that the Veteran was asked if he was willing to report for an examination. The Veteran indicated that he was not willing to do so, and that VA should make a decision based on the evidence of record. The author of the report indicated that the Veteran was advised of the adverse consequences of failing to report for an examination. According to 38 C.F.R. § 3.655(a), (b) (2013), when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination; and the examination was scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. As such, the Board is compelled to decide this claim based on the current record. Having reviewed the evidence of record, the Board concludes that service connection is not warranted for a heart disorder or hypertension. In this regard, the Board notes that it determined in October 2010 that the evidence was not sufficient to decide the claims, and remanded to obtain a comprehensive examination explaining the etiology of the Veteran's claimed heart disorder and hypertension. The Veteran canceled this examination without explanation and did not thereafter express a willingness to report for an examination. The grant of service connection requires competent evidence to establish a diagnosis and relate the diagnosis to the Veteran's service. While the record reflects that the Veteran has a heart disorder and hypertension, it does not show that these claimed disabilities were either caused or aggravated by any incident of service, to include taking a steroid for asthma. There is no competent evidence linking these two claimed disabilities to service. In reaching its conclusion, the Board has considered the Veteran's statements and testimony in regard to the cause of his heart disorder and hypertension. The Veteran is certainly competent to report the onset of symptoms and the circumstances surrounding such. However, the Board finds that he is not competent to offer an opinion on a complex medical matter, to include opining as to the diagnosis and etiology of heart disease and hypertension. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the etiology of these claimed disabilities is ultimately a medical question far too complex to lend itself to the opinion of a layperson. The Board observes that although the Veteran has been advised of the evidence necessary to support a claim of entitlement to service connection for these disabilities and has also been notified that an adequate examination is required, he has neither identified nor submitted further evidence supportive of this claim. As noted, he has also canceled the necessary VA examination, without explanation or request to be rescheduled. The preponderance of the evidence is against the Veteran's claim. Consequently, the doctrine of reasonable doubt is not applicable to the instant appeal. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a heart disorder is denied. Entitlement to service connection for hypertension is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs