Citation Nr: 1333593 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 09-30 042 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a cardiac disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for an ear condition and a heart condition. In April 2008, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in August 2009. In December 2012, the Board denied the Veteran's claim for service connection for an ear disorder and remanded his claim for service connection for a heart disorder to the Appeals Management Center (AMC). In June 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA) in accordance with 38 C.F.R. § 20.901(a) (2013). The requested opinion was obtained in July 2013 and associated with the Veteran's claims folder. The VHA opinion has also been provided to the Veteran, and he was afforded 60 days to provide additional argument or evidence. A response was received from his representative in September 2013. FINDING OF FACT A cardiac disorder was not shown in service or within a year of service discharge; and, the preponderance of the evidence fails to establish that the Veteran's diagnosed coronary artery disease or mitral valve prolapse is related to his active service. CONCLUSION OF LAW A cardiac disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the AOJ of any information and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in July 2007 of the criteria for establishing service connection, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. The July 2007 letter also notified him of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and was sent prior to initial adjudication of the claim. VA's duty to assist has also been satisfied. The Veteran's service treatment records, VA treatment records, Family and Medical Leave Act (FMLA) records, VA examination report, and Veterans Health Administration (VHA) opinion are in the file. Private treatment records have been obtained to the extent possible. No outstanding evidence has been identified that has not otherwise been obtained. The Veteran underwent a VA examination to evaluate his cardiac disability in January 2013. Additionally, an opinion was solicited from a VHA cardiologist in July 2013. The report from that examination and a copy of the VHA opinion have been included in the claims file for review. The examination and opinion involved a review of the claims file, a thorough examination of the Veteran (examination only), consideration of the Veteran's lay statements/history, and conclusions that were supported by sufficient rationale. The examination and VHA opinion, taken together, are therefore adequate for to decide the claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). As noted above, the Board remanded the Veteran's claim in December 2012 to the AMC for further evidentiary development, including affording him the opportunity to submit additional evidence and providing him with a VA heart conditions examination. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC sent the Veteran a letter in December 2012 asking him to submit or identify any outstanding evidence that he wished to be considered in association with his claim. He was afforded a VA heart conditions examination in January 2013. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). Essentially, in order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Hickson element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a); arteriosclerosis and all forms of valvular heart disease are qualifying chronic diseases. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable in the present case. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2013). A review of the medical evidence reflects that the Veteran has been diagnosed with various cardiac disorders, including coronary artery disease (CAD) and mitral valve prolapse (MVP). The first element of Hickson is met. A review of the service treatment records shows that the Veteran was treated in October 1971 for complaints of chest pains that were described as sharp and vague in nature, occurring at least three times per month for one to two hours at a time. The etiology was unknown. This is the only finding related to complaints, treatment, or diagnosis of chest complaints or a cardiac disorder. His heart and vascular system were assessed as being normal when he was examined on separation in April 1973. In any event, the Board acknowledges that the Veteran was seen for complaints of chest pain in service. Thus, the second element of Hickson has been met. Although an in-service injury and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's in-service complaints of chest pain and his current cardiac disability. See Hickson, supra. The Veteran underwent a VA examination to evaluate his cardiac complaints in January 2013. The VA examiner noted his in-service complaints of chest pain, which he characterized as having been diagnosed as noncardiac, and his post-service cardiac history, including a 2001 myocardial infarction (MI). He diagnosed the Veteran with CAD and MVP and concluded that these diagnoses were not related to his military service because they were diagnosed after service and his service treatment records did not show any diagnosed cardiac conditions. As the January 2013 VA examiner did not fully address whether the Veteran's in-service complaints of chest pain could have been related to his current cardiac disorders, an opinion from a VHA cardiologist was subsequently obtained in July 2013. The VHA expert concluded that the Veteran's current cardiac disorders were not related to his military service because the descriptions of his in-service chest complaints were not consistent with angina pectoris (the cardiac pain caused by myocardial ischemia). The examiner further noted that it was unlikely that the Veteran had any pain caused by myocardial ischemia prior to 2001 MI as a cardiac catheterization did not show any other narrowed areas in his coronary arteries other than the acutely ruptured one that led to his MI. The cardiologist also disagreed with the diagnosis of MVP as a January 2007 echocardiogram showed a normal appearing and functioning mitral valve with no mitral regurgitation. He also noted that many people with normal hearts received this diagnosis in the past, as did the Veteran, based on diagnostic guidelines that have subsequently been proven incorrect. Thus, he concluded that the Veteran did not have MVP or coronary atherosclerosis that were related to his military service, including his in-service complaint of chest pain. The medical evidence also includes VA and private treatment records regarding the Veteran's chest pain and cardiac disorders. Notably, July 1974 and June 1993 VA treatment records and August 1984, July 1987, and March 1988 private treatment record indicate that the Veteran complained of epigastric burning pain and frequent indigestion and questioned whether his chest pain could be possible indigestion. Additionally, January 1985 and July 1986 private treatment records noted that the Veteran's chest pain was probably musculoskeletal in nature and a November 1990 private treatment record diagnosed him with chest wall pain. All of these findings are consistent with the VHA cardiologist's opinion that the Veteran's in-service chest pains were not cardiac in nature. The Board notes that there are a few treatment records that seem to link the Veteran's chest pain to his current cardiac disorders. A March 1988 private treatment record diagnosed the Veteran with chest pain with MVP. A September 1988 private treatment record noted his reported history of chest pain since 1973 and diagnosed him with MVP possibly with associated chest pain. A May 1993 private treatment record indicated that the Veteran's MVP was questionably the source of his chest pain. To the extent that the Veteran argues that these treatment records provide positive nexus opinions upon which to grant service connection, the Board notes that it is free to favor one medical opinion over another as long as it provides an adequate basis for doing so. See Evans v. West, 12 Vet. App. 22, 30 (1998); Owens v. Brown, 7 Vet. App. 429, 433 (1995). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). In this case, the Board finds the January 2013 VA examiner's and July 2013 VHA cardiologist's negative nexus opinions more probative than these treatment records. Although the private treatment records link the Veteran's chest pain at that time to a diagnosis of MVP, they do not specifically link it to his in-service complaint of chest pain. As there was over a decade between the Veteran's separation from service and the first of these treatment records, it cannot be assumed that they incorporate the Veteran's in-service complaints of chest pain as well as his complaints at the time of the records. Further, the treatment records do not provide a rationale for the conclusions/diagnoses, nor do they address the nature of the Veteran's in-service chest pain and whether it is linked to his current complaints and diagnosis. Finally, the July 2013 VHA cardiologist called into question the credibility of these 1980s and 1990s diagnoses of MVP based on more recent findings. In light of these deficiencies, the Board finds these private treatment records to be less probative as to the etiology of the Veteran's cardiac disability than the VA and VHA opinions and insufficient to grant service connection. The only other evidence which purports to link the Veteran's current cardiac disability to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of cardiac medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe what he experiences (in this case, chest pain and cardiac symptoms), he is not able to provide competent evidence as to the etiology of his cardiac diagnoses. Providing such an opinion requires medical expertise in the cause and symptoms of cardiac disorders and the nature of various types of chest pain. The Veteran and his representative have no such expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer); see also 38 C.F.R. § 3.159 (a)(1) (2013). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. The Veteran has, at times, complained of chest pain since service. The VA and VHA examiners considered these complaints in forming their opinions. However, while they acknowledged his complaints, they still found that his current diagnoses were not related to his active service. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service and his current cardiac disability. Although the Board notes the Veteran's current disability and in-service complaints, without sufficiently probative evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a cardiac disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a cardiac disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs