Citation Nr: 1331798 Decision Date: 10/02/13 Archive Date: 10/07/13 DOCKET NO. 10-11 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a cardiovascular disorder, to include hypertension. 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Calvin Hansen, Attorney ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1971. He also had additional periods of Reserve service in the Air National Guard between July 1974 and July 1986 and in the Army National Guard between July 1986 and July 1998. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an August 2009 decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Lincoln, Nebraska, which denied the claims. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's hypertension did not have onset during active service and is not related to service, nor does the Veteran currently have another cardiovascular disorder. 2. The Veteran's left shoulder condition did not have onset during active service and is not related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a cardiovascular disorder, to include hypertension, have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for a left shoulder condition have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The term "active military, naval, or air service" means active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active duty for training (ACDUTRA) includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22)(C) (West 2002); 38 C.F.R. § 3.6(c) (2013). In this case, the Veteran has both active duty service in the Air Force and periods of ACDUTRA and INACDUTRA in the National Guard. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may also be granted on a presumptive basis for certain chronic diseases, including cardiovascular-renal disease, if shown to be manifest to a degree of 10 percent or more within one year following a veteran's separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2010). It is noted that in 38 C.F.R. § 3.309, the term cardiovascular-renal disease applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease, and that since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the one-year period following separation will be given the same benefit of service connection as any of the other chronic diseases listed in that Section. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Cardiovascular Disorder and Hypertension The Veteran's September 1966 service entrance examination report shows a blood pressure reading of 122/76. A November 1968 service treatment record reflects complaints of pain in the chest and the diagnosis entered was pleuritic chest pain of unknown etiology; blood pressure was 100/70. Records, dated from December 1969 to January 1970, reflect the Veteran underwent inpatient observation for 13 days for suspected pericarditis with an ultimate cessation of chest pain but diagnosis not established on discharge. A January 1970 record noting an abnormal electrocardiogram (EKG) states pericarditis could not be ruled out, and the diagnosis entered on February 1970 EKG was early repolarization. The November 1970 separation examination report shows a blood pressure reading of 130/84. The examiner stated that the Veteran had chest pain in 1969 diagnosed as pericarditis that had no complications and no sequelae after good recovery. On the accompanying medical history report, the Veteran indicated a history of pain or pressure in the chest but denied having had high or low blood pressure. A May 1980 National Guard examination report notes a history of pericarditis in 1969 with no complications and no sequelae. Blood pressure was 122/80 on examination. On the accompanying medical history report the Veteran denied pain or pressure in the chest, heart trouble, and high or low blood pressure. The Veteran's National Guard records reflect a blood pressure of 112/60 at a August 1984 periodic examination. On the accompanying medical history report the Veteran denied pain or pressure in the chest, heart trouble, and high or low blood pressure. An August 1984 EKG report reflects an interpretation of sinus bradycardia and elevated ST segment in precordial leads consistent with early repolarization, probably within normal limits. Medical records further reflect the following blood pressure readings: February 1988, 112/72; March 1991, 123/80; and August 1993, 114/72 and 158/82. In November 1993 the Veteran reported chest pain and was seen by a private cardiologist who found he had reversible ischemia in the inferior wall and proximal and mid septal and inferoseptal walls. A diagnostic cardiac catheterization showed good left ventricular (LV) function and normal coronary arteries. The Veteran denied having hypertension and his blood pressure was measured at 126/86 and 132/76. On examination in December 1995 the Veteran had a blood pressure reading of 124/92; his heart was found normal on examination. The Veteran was afforded a VA examination in March 2013. The examiner opined that the Veteran's hypertension less likely than not manifest during service or within one year following service or is otherwise related to service. The examiner stated that the Veteran reported high blood pressure for the past four to five years during which time he has been taking enalapril daily. The Veteran said he was unaware of the cause of his hypertension and has no other current cardiac conditions. The Veteran's blood pressure was normal on examination with medication. The examiner opined that the Veteran developed essential hypertension about five years ago. Citing to the Mayo Foundation, the examiner stated that in most adults there is no identifiable cause of high blood pressure and essential or primary hypertension tends to develop gradually over many years. With regard to the Veteran's period of active duty from 1967 to 1971, the Board finds that the evidence does not show the Veteran's hypertension manifest during that time or within one year after his discharge. The evidence shows that the Veteran did not have elevated blood pressure during service, nor was he treated for high blood pressure. The record further includes no medical evidence from within a year of discharge showing high blood pressure. The Board also finds the evidence does not show the Veteran's high blood pressure manifest during his time in the National Guard. His service records during that time do not show elevated blood pressure, nor was he treated for high blood pressure. At his 2013 VA examination the Veteran reported he was first diagnosed with and prescribed medication for high blood pressure five years prior. To the extent that he contends that his hypertension began in service, the Board finds he is not competent to do so as hypertension is a complex medical question not capable of lay observation. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (holding that "[l]ay evidence can be competent and sufficient to establish a diagnosis when ... a lay person is competent to identify the medical condition" and providing, as an example, that a layperson would be competent to identify a condition such as a broken leg, but would not be competent to identify a form of cancer); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Accordingly, the Veteran's lay statements in this regard are not competent or probative evidence supporting his claim. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1376-77. The Board further finds that the evidence does not support any claim that the Veteran's current high blood pressure is related to his active duty service. The only competent medical opinion as to etiology is that of the March 2013 VA examiner, who opined that the Veteran's condition is less likely than not related to his service, noting that for most adults there is no identifiable cause of high blood pressure. With regard to other cardiovascular disease, the record does not show any current diagnosis other than hypertension, and the Veteran denied having other cardiovascular conditions at his March 2013 VA examination. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim for service connection for a cardiovascular disease, including hypertension, must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Left Shoulder At his September 1966 service entrance examination the Veteran's upper extremities were found to be normal. At his November 1970 separation examination his upper extremities were again found to be normal, and on the accompanying medical history report he denied having or having had a painful or trick shoulder or elbow. National Guard examination reports, dated in May 1980 and August 1984, show the Veteran's upper extremities were again found to be normal, and on the accompanying medical history reports he denied having or having had a painful or trick shoulder or elbow. An accompanying medical history report to a December 1995 examination report notes left shoulder tendinitis for 6-8 years with limited motion. Private records, dated in May 1997, note left shoulder bursitis and a possible left rotator cuff tear, and a June 1997 record reflects left shoulder tendinitis. In addition, the November 2009 VA examination report reflects the Veteran underwent left shoulder rotator cuff repair in February 2005 secondary to an on-the-job injury. The examiner noted that the Veteran had pain on motion and some limitation of motion in his left shoulder. The Veteran was afforded a VA examination with regard to his left shoulder claim in March 2013. The examiner opined that the Veteran's left shoulder disorder less likely than not manifest during service or within one year following separation or is otherwise related to service. The examiner explained that the Veteran reported he first was first assessed by a doctor for his left shoulder in 2001. The examiner opined that the evidence suggests that the Veteran developed problems with his left shoulder in the 1990s, likely 1997 and that his injury was not related to service. The examiner noted the Veteran reported he did not remember injuring his left shoulder in service but did report it bothered him during service. In April 2013 the Veteran reported at a VA medical appointment that he has had left shoulder pain periodically for several years, noting he had a left shoulder rotator cuff repair about sever years ago. He reported no new history of injury or trauma and said the pain is an ache with certain motions. With respect to the Veteran's period of active Air Force service from 1967 to 1971, the Board finds the evidence does not show the Veteran incurred a left shoulder injury in service. The Veteran's service treatment records show no complaints of or diagnosis of any left shoulder problems during that time, weighing against the Veteran's claim. Further, the Veteran denied having a painful or trick shoulder or elbow and his upper extremities were found normal on his separation examination in November 1970, providing additional evidence against his claim. There is also no competent medical opinion evidence suggesting the Veteran has a current left shoulder disability related to that period of service. The Veteran himself reported he could not recall a specific left shoulder injury during service. Although the Veteran did report at his March 2013 VA examination that his left shoulder bothered him during service, the Board finds that the Veteran's service treatment records and his own statements on discharge do not support his contention. Even if credible, the Board finds that the Veteran is not competent to opine as to the etiology of any current left shoulder condition as related to any shoulder discomfort experienced during service. While the Veteran is competent to report on symptoms he feels such as pain, he is not competent to opine as to complex medical questions not capable of lay observation, including a rotator cuff tear. The March 2013 VA examiner opined that the Veteran's left shoulder condition is not related to his service. Thus, the Board finds the evidence does not show that the Veteran has a left shoulder condition that was incurred in or is related to his active duty service from 1967 to 1971. The first medical evidence of problems with the Veteran's left shoulder is from the 1990s. Notably, the Veteran was in the National Guard from 1974 to 1998. Therefore, service connection would be warranted if the evidence showed the Veteran incurred or aggravated a left shoulder disability due to injury incurred in the line of duty during a period of ACDUTRA or INACDUTRA. However, the Board finds that the evidence does not support such a finding. Although the evidence shows the Veteran was first suspected to have a left rotator cuff tear 1997, along with bursitis and tendinitis, the evidence does not show the Veteran's shoulder condition was incurred as a result of an injury incurred during a period of ACDUTRA OR INACDUTRA. The medical evidence does not suggest a precipitating injury, and the Veteran told the March 2013 VA examiner that he could not recall a specific injury in service. Thus, the Board finds the evidence does not show the Veteran injured his left shoulder during a period of ACDUTRA or INACTDUTRA. As the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in March 2009. In the letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection for high blood pressure and left shoulder AC rotator cuff and of the Veteran's and VA's respective duties for obtaining evidence. In the letter the RO also provided notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. Thus, the duty to notify has been satisfied. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records, and private treatment records identified by the Veteran. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in March 2013. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with a sufficient opinion on the nature and etiology of the Veteran's high blood pressure and left shoulder condition. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist 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, 16 Vet. App. 183. ORDER Service connection for a cardiovascular disorder, to include hypertension, is denied. Service connection for a left shoulder condition is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs