Citation Nr: 1333608 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-28 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to service connection for diabetes mellitus type II. 2. Entitlement to service connection for a disability associated with a right bundle branch block and chest pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal of May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran presented testimony at a January 2012 hearing in front of the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the claim file. The Veteran also attended a December 2010 hearing at the RO. The transcript of that proceeding has been lost, as discussed further below. FINDINGS OF FACT 1. The Veteran's diabetes mellitus is etiologically related to his in-service diagnosis of prediabetes. 2. The Veteran does not have a disability associated with a diagnosed right bundle branch block and/or chest pain. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). 2. The criteria for service connection for a disability associated with a right bundle branch block and chest pain have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). With regard to the issue of entitlement to service connection for diabetes mellitus, the Board is granting the claim for service connection. Thus the claim is substantiated, and there are no further VCAA duties. Concerning service connection for a cardiovascular disorder, the Veteran was sent a letter in August 2006 that fully addressed all VCAA notice elements for service connection claims and was issued prior to the initial RO decision in this matter. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim 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. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination, including the examination ordered in the July 2012 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that 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). The Veteran's statements in support of the claim are of record, including testimony provided at a January 2012 hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate his service connection claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. The transcript of the Veteran's December 2010 RO hearing is not of record, and, per the RO, has been lost. The Board instructed the RO to obtain this hearing transcript on remand, but in October 2012, the RO acknowledged that it was unable to locate the dictation of the hearing. The fact that this transcript is unavailable does not prejudice the Veteran, however, and the Board may address the merits of his claim. See Stegall, 11 Vet. App. at 271 (addressing non-prejudicial error). First, the Veteran has acceded to this course of action: according to a September 2011 RO memorandum, the Veteran, informed that the dictation of his hearing was lost, "decided not to have another hearing at Baltimore" and sought instead to have a Board hearing. Further, as discussed below, the Veteran's claim is being denied based on the fact that he does not have a disability associated with his right bundle branch block. Multiple VA examiners have determined that there is no current disability, and at no time since he entered service, according to his in-service and post-service medical records, has the Veteran been diagnosed with a cardiovascular disability. He has also not alleged that he has a diagnosed disability. While it is theoretically possible that he could have related to the RO hearing officer the fact that he had been previously diagnosed with a disability related to his right bundle branch block or his chest pain, he informed the undersigned in January 2012, slightly more than a year following the December 2010 RO hearing, that he had never been diagnosed with such a disability. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. 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. 38 C.F.R. § 3.159(c). Service Connection 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; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means 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). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Diabetes Mellitus Service connection is warranted for diabetes mellitus. 38 C.F.R. § 3.303. The Veteran has been diagnosed with diabetes since December 2010, and thus has a current disability. He was diagnosed with "prediabetes" while on active duty. While prediabetes is not diabetes mellitus, and does not amount to a disability that itself could warrant service connection, it is evidence of a possible in-service onset of the currently-diagnosed disability. Considering the in-service diagnosis of prediabetes, the Board in July 2012 ordered a VA examination. Following an August 2012 examination, the examiner opined that "[d]iabetes mellitus as diagnosed December 2010 is as least as likely as not (>50:50) probability [sic] related to prediabetes as documented in service." The examiner provided a full rationale for his opinion, indicating that "prediabetes is a common condition of insulin resistance characterized by impaired glucose tolerance and elevated HGB A1c but without fully meeting the criteria for diabetes." He explained that prediabetes "has a high rate of progression to overt diabetes as in the progression noted in this case." Thus, as there is evidence of a current disability, an in-service diagnosis of prediabetes, and a competent nexus between the two, he meets the three criteria for service connection. See Holton, 557 F.3d at 1366. Disability Associated with a Right Bundle Branch Block and Chest Pain The Veteran's claim for service connection for a disability associated with a right bundle branch block and chest pain must be denied, as he does not have a current disability for which service connection may be granted. 38 C.F.R. § 3.303. There is no dispute that the Veteran has a right bundle branch block. Electrocardiograms (EKGs) dating to October 1981 have continued to demonstrate that the right bundle branch block condition exists (at times noted to be "incomplete," at other times, "complete"). This condition was also observed on the Veteran's August 1983 pre-commissioning examination. The EKGs documenting the right bundle branch block that were conducted throughout his military service each included notes interpreting them as "borderline" EKGs. Two EKGs, one from August 1998 and the second from December 1998, demonstrated in addition to the incomplete right bundle branch block, a nonspecific T Wave abnormality; those EKGs were noted to be "abnormal." The Veteran also has a history of undiagnosed chest pain dating to his time in service. In addition to his testimony regarding chest pain, his medical records documented treatment for that pain. An August 2002 note indicated that his chest pain was noncardiac in nature, but rather was related to gastroesophageal reflux disease, a condition for which the Veteran is service-connected. The issue, therefore, is whether the right bundle branch block, or the undiagnosed chest pain, are disabilities for which service connection may be granted. At his January 2012 Board hearing, the Veteran acknowledged that no medical professional had ever diagnosed him with any sort of heart condition. The only diagnosis he had been provided was for hypertension, a condition for which he has been granted service connection. In an effort to determine whether a current disability existed, the Board sought a medical opinion following the July 2012 remand. In a September 2012 opinion, the examiner, after a review of the Veteran's medical records, explained the nature of a right bundle branch block, including its effects and its causes. The examiner noted that the Veteran's chest pain was extensively worked up in the records, and that he had a longstanding right bundle branch block. There was no evidence of coronary artery disease according to a January 2012 electron-beam computed tomography scan, and a cardiac EKG in August 2012 showed normal systolic function and no significant valve disease. He opined that "it is less likely than not that any cardiac disability found is related to his right bundle branch block," as there was no evidence that any chest pain was cardiac-related, the right bundle branch block would be generally asymptomatic in the absence of other underlying cardiac conditions, and because long-term outcomes are generally excellent in patients with a right bundle branch block and without apparent heart disease. He continued, "[i]n regards to whether [right bundle branch block] is considered [a] disability it would appear that this would be based on type [and] severity of any concurrent underlying heart disease and possible presence of other conduction disturbances." The Veteran thereafter underwent a VA heart examination. That examiner diagnosed the Veteran with "atypical chest pain," dating to 1998. The examiner noted that the Veteran did not have ischemic heart disease, coronary artery disease, myocardial infarction, congestive heart failure, cardiac arrhythmia, a heart valve condition, an infections heart condition, or pericardial adhesions. He had not undergone any surgical or non-surgical procedures for his heart. The examiner noted one hospitalization, while the Veteran was stationed at Keesler Air Force Base; he was seen for acute atypical chest pain (rule out myocardial infarction), and following 24 hours of monitoring, as well as blood work, an EKG, and a stress test, was discharged without any diagnosis or treatment. In providing an opinion, the examiner stated that she concurred with the September 2012 examiner; a right bundle branch block was not necessarily considered a disability if there was no identifiable structural underlying heart condition diagnosed. She could not identify any cause of the Veteran's atypical chest pain. Considering the record, the preponderance of the evidence is against a finding that the right bundle branch block diagnosis is a disability for VA purposes. He has also not been diagnosed with a cardiovascular disability related to his right bundle branch block. As discussed by both the September 2012 and January 2013 examiners, the right bundle branch block could be related to a disability, but only if an underlying heart disability was diagnosed. There is similarly no competent evidence that the Veteran's chest pain is a disability. Pain alone is not a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Neither the January 2013 examiner who performed the physical examination, nor the September 2012 examiner who provided an opinion based on a review of the record, associated the Veteran's chest pain with any disability. The one medical professional who has provided an etiology for the Veteran's chest pain is the physician who, in August 2002, associated his pain with gastroesophageal reflux disease. To the extent that the Veteran asserts that his right bundle branch block or his chest pain are disabling conditions, he is not competent to make such a medical finding. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Without a disabling condition related to chest pain or the right bundle branch block, service connection is not warranted. 38 C.F.R. § 3.303; see also Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for diabetes mellitus type II is granted. Entitlement to service connection for a disability associated with a right bundle branch block and chest pain is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs