Citation Nr: 1333801 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 07-34 574A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Kalisse Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from July 1976 to July 1982 and November 1983 to July 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. This case was before the Board in May 2011, and remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include providing the Veteran with a VA examination. The requested development having been completed and ready for appellate review. The Veteran testified before a VA Decision Review Officer (DRO) in May 2007. A transcript of this hearing is of record. FINDINGS OF FACT 1. Degenerative disc disease of the lumbar spine is manifested by subjective complaints of pain on physical activity, standing, sitting and walking long distances and decreased range of motion with objective evidence of limitation of motion of the lumbar spine; and without evidence of moderate or severe limitation of motion or ankylosis, incapacitating episodes, bowel or bladder dysfunction. 2. Mild left-sided peripheral neuropathy has been associated with the Veteran's degenerative disc disease. 3. Coronary heart disease was not manifested in active service or within one year of service discharge, and is not otherwise etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237 and 5243, General Rating Formula for Diseases and Injuries of the Spine (2012). 2. The criteria for a separate 10 percent service-connected evaluation for mild paralysis of the sciatic nerve have been approximated. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Note (1); Diagnostic Code 8520 (2012) 3. Coronary heart disease was not incurred in or aggravated by a period of active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309(a), 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, and (3) which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See Pelegrini v. Principi, 18 Vet. App. 112 (2004). For increased-rating claims, 38 U.S.C.A. § 5103(a) requires the Secretary "to notify the claimant that to substantiate such a claim the claimant should provide or ask the Secretary to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment." Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102-103 (2010) (Vazquez-Flores II) (citing Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1279-80 (Fed. Cir. 2009) and Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008)). The Veteran received notification prior to the initial unfavorable agency decision through November 2005, March 2006, and March 2011 letters. The Veteran's claim was subsequently readjudicated, most recently in a March 2012 supplemental statement of the case. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A (2002); 38 C.F.R. § 3.159 (2012). Service treatment records have been associated with the claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. See 38 C.F.R. § 3.159(c)(4). The Veteran was afforded VA examinations in February 2006 and June 2011 for his lumbar spine disability. See 38 U.S.C.A. § 5103A; see also 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The VA examinations are factually informed, medically competent and responsive to the issue. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). All relevant facts have been developed to the fullest extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; see 38 C.F.R. § 3.159. Analysis I. Degenerative Disc Disease Although the severity of the Veteran's degenerative disc disease does not meet or approximate findings sufficient to grant an increased rating, medical evidence has demonstrated that he has mild, left sided peripheral neuropathy. A separate 10 percent disability evaluation will therefore be assigned. Massey v. Brown, 7 Vet.App. 204 (1994)(holding that in the application of schedular ratings, VA must only consider the factors as enumerated in the Schedular rating criteria, which in part involves the examination of clinical data gathered by competent medical professionals); see generally Bierman v. Brown, 6 Vet.App. 125 (1994) (under former Diagnostic Code 5293 pertaining to neurological disorders of the spine, a separate rating for a neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder). Disability evaluations are determined by comparing a Veteran's present symptomatology with the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of the two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement compensation has already been established and an increase in disability rating is at issue, the present level of the Veteran's current disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board has reviewed all evidence of record, as required; however, the more critical evidence consists of the evidence generated during the appeal period. The Board is required to not only to evaluate the medical evidence of record since the filing of the claim for an increased rating but also consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which the ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all the elements listed above. Functional loss may be due to an absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidence by the visible behavior of the claimant undertaking the motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include restricted or excess movement; weakness; fatigability; incoordination; or pain on movement. 38 C.F.R. § 4.45. The Veteran's lumbar spine disability has been evaluated as 20 percent disabling under 38 C.F.R. § 4.71(a), Diagnostic Code 5237, pertaining to lumbosacral strain. In addition, the Veteran has been diagnosed with DDD of the lumbar spine. As such, Diagnostic Code 5243 pertaining to intervertebral disc syndrome is also applicable to the instant claim. Diagnostic Code 5243 rates intervertebral disc syndrome on incapacitating episodes. The Veteran asserts a higher evaluation is warranted for his lumbar spine disability. The Veteran's entire record will be reviewed under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and special consideration is warranted for disabilities diagnosed under Diagnostic Code 5243 based on incapacitating episodes. Under the General Rating Formula, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, unfavorable ankylosis of the entire spine warrants a 100 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, warrants a 40 percent rating. Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis warrants a 20 percent rating. Note (1): Evaluate any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The Veteran's lumbar spine disability has been evaluated at 20 percent throughout the appeal period. The preponderance of the evidence is against the claim and the Veteran is not entitled to an increased evaluation for his lumbar spine disability. The Veteran's lumbar spine disability was manifested by subjective complaints of pain, especially following lying, walking, sitting or standing for prolonged periods. However, objective evidence of record during this period indicates no pain on motion, spasms, weakness or tenderness. Further, there was no evidence of decreased range of motion of the lumbar spine such that would warrant an increased rating, no evidence ankylosis of the thoracolumbar spine or the entire spine or evidence of incapacitating episodes or bowel or bladder dysfunction. In regards to the Veteran's range of motion test, a June 2011 VA examination noted the Veteran as having flexion of the lumbar spine without objective evidence of pain from zero to 90 degrees, full extension from zero to 30 degrees, full lateral flexion from zero to 30 degrees bilaterally, and full lateral rotation from zero to 30 degrees and a total range for motion of 240 degrees. Additionally, the examiner noted that the Veteran had a normal gait. See June 2011 VA Examination. Applying the range of motion measurements to the General Ratings Formula, the above evidence demonstrates that the Veteran is not entitled to an evaluation greater than 20 percent for his lumbar spine disability. See 38 C.F.R. § 4.71(a). There is no evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or favorable ankylosis of the entire thoracolumbar spine, which would warrant a 40 percent evaluation. Additionally, there is no evidence that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine, which would warrant a 50 percent evaluation or unfavorable ankylosis of the entire spine, which would warrant a 100 percent evaluation. Given his assertions, the Veteran's back disability rating is essentially protected. At the time the Veteran initially received service connection for his back disorder in August 2001, his disability was evaluated under more favorable rating criteria which are no longer applicable and which VA may not now apply as a matter of law. The Veteran is currently assigned the highest possible evaluation for limitation of motion of the thoracolumbar spine under the current rating criteria. Effective from September 6, 2003, disabilities of the thoracolumbar spine rated under the General Rating Formula for Diseases and Injuries of the Spine were amended and the Veteran would not currently qualify for a 20 percent evaluation under current the rating criteria. As a result, the Board finds that the Veteran is not entitled to an evaluation in excess of 20 percent for his lumbar spine disability. Further, the Board considered whether the evidence of record demonstrated entitlement to a rating in excess of 20 percent under Diagnostic Code 5243 (pertaining to intervertebral disc syndrome). However, a higher rating is not warranted. There is nothing of record evidencing incapacitating episodes, at any point during the Veteran's appeal caused by the Veteran's DDD. Incapacitating episodes are defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71(a), Diagnostic Code 5243, Note (1). Indeed, the record suggests that both as to possible evaluation under the range of motion criteria and that of incapacitating episodes, the Veteran appears to have functional capacity beyond what he currently alleges. In a May 2011 VA treatment note, the Veteran was noted to be working for the post office with duties involving standing and sitting, and that although he temporarily stopped work at some point, the stoppage was due to a non-physical cause and the Veteran had resumed employment. The Board has considered the Veteran's complaints of pain, stiffness, weakness and fatigability, particularly on flexion and motion. See June 2011 VA Examination Report; see also March 2008 Statement in lieu of VA Form 646. However, the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the lumbar spine to less than those levels discussed above and does not therefore serve as a basis for an evaluation in excess of 20 percent for manifestations of DDD. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system"). The preponderance of the evidence is therefore against an evaluation in excess of 20 percent for his service-connected lumbar spine disability under the range of motion and incapacitating episodes based criteria. The Board has considered whether the benefit of the doubt rule applies to this stage of the appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet App 49, 55 (1990). However, the rule does not apply in this instance, a preponderance of the evidence is against an increased evaluation and the claim must be denied. However, the Veteran has complained of left-sided shooting pain and various neurological symptoms involving the left lower extremity. On electromyographic testing in examination in November 2005, and conducted with inquiry of the severity of the Veteran's back disorder, he was diagnosed as having "mild axonal length dependant sensory-motor polyneuropathy and "old or chronic and indolent left-sided L5 radiculopathy." Under note (1) of the General Rating Formula for Diseases and Injuries of the Spine and 38 C.F.R. § 4.71a, associated objective neurological abnormalities are to be evaluated under an appropriate diagnostic code. The Veteran's disorder meets these criteria, and a separate 10 percent evaluation will be assigned. Additional Considerations The has considered the Veteran's assertions that his service-connected DDD warrants an evaluation greater than 20 percent. However, in determining the actual degree of disability, an objective examination is more probative of the degree of Veteran's impairment. Additionally, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71(a) in determining the overall severity of the disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993). The discussion above reflects the notion that the symptoms and effects of the Veteran's DDD, namely painful and reduced motion, are fully contemplated by the applicable rating criteria in the rating schedule. Therefore, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extra-schedular rating is unnecessary. 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008). Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the record is negative for evidence that the Veteran is unemployable. He is not in receipt of Social Security disability benefits, and there is no medical evidence that the Veteran's disability has markedly interfered with employment. At the Veteran's June 2011 VA examination, the examiner noted that the Veteran's low back disability has "no effect on the [V]eteran's usual occupation" and that he can perform all activities of daily living. See June 2011 VA Contract Examination. As noted, the Veteran remains employed and while the Veteran has indicated has experienced increased absenteeism, he has not stated that he is unable to perform his duties due to his service-connected lumbar spine disability. See May 2007 DRO Hearing at 6-7. Therefore, remand or referral of a claim for TDIU is not necessary, as there is no evidence of unemployability due to his service connected disability. II. Heart Disorder Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exist which does not satisfactorily prove or disprove the claim. See U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102 (2012). Service connection may be established for 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, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of an 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. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Service connection may also be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b). Continuity of symptomatology may establish service connection if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet. App. 488, 495-96 (1997)). Finally, certain chronic disabilities, including cardiovascular disease, are presumed to have been incurred in service if the disability manifest to a compensable degree within one year of discharge from service. 38 C.F.R. §§ 3.307, 3.309(a). Cardiovascular-renal diseases, including organic heart disease is one of the disorders included in this category. The Veteran maintains that his currently diagnosed coronary artery disease is due to stress incurred during his period of active service. See May 2007 DRO Hearing at 10. While the evidence reveals that the Veteran has coronary artery disease, the competent, probative evidence of record does not etiologically link the Veteran's current disability to his service. Service medical records pertaining to his period of active duty service do not show complaints of or treatment for a heart disorder. During active service, the Veteran underwent an electrocardiogram in 1998 which found sinus bradycardia, but the examiner found that the Veteran's cardiovascular system was otherwise normal. Clinical evaluations in April 1975, July 1976, February 1982, June 1982, November 1983, January 1984, October 1987, February 1998, and on the Veteran's March 2000 pre-retirement physical evaluations all show no cardiovascular abnormalities. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Veteran has asserted in-service symptomatology such as erectile dysfunction, sleep apnea and poor physical readiness reports. See May 2007 DRO Hearing at 9. However, medical evidence has determined that Veteran's erectile dysfunction is due to low testosterone and not due to his heart condition. See March 2001 VA Examination. The Veteran underwent a sleep study to determine if he has sleep apnea, which the Veteran believed was an indicator of his heart condition. The results conclusively determined that the Veteran does not have obstructive sleep apnea syndrome, but was diagnosed with restless leg syndrome. See April 2001 Neurology Sleep Study. Lastly, the Veteran did have a considerable decrease in his physical readiness scores in the late 1990's; however, his performance has been attributed to considerable weight gain and not a heart condition. See June 2011 VA Examination; see also April 1999 Physical Readiness Test Results. Finally, a March 2000 Report of Medical Examination, completed upon the Veteran's discharge from active service, indicates a normal clinical examination of the lungs and chest, heart and vascular system. The first indication of any diagnosed cardiac disorder is an undated statement received in May 2005 from William Mains, M.D., who reported that the Veteran "has had a silent myocardial infarction in the past. It may have occurred during his time in the service or up to one year afterwards." (Italics added). Dr. Mains did not state the basis for his opinion. In February 2007, Dr. Mains provided another statement, indicating that the Veteran record "did have a myocardial infarction in 2000 or the year after. (Italics added). In the latter statement, Dr. Mains stated that the basis for his opinion was that the Veteran reported that he had sleep apnea, erectile dysfunction, and progressive decreasing physical readiness scores which indicated the cardiac disorder. Dr. Mains' opinion is not probative. In his first letter, the Courts have recognized that such a phrasing of "may" also includes the possibility that such a connection "may not" be made and is speculative. Obert v. Brown, 5 Vet. App. 30 (1993) (holding that medical evidence that is speculative, general, or inconclusive cannot support a claim); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Moreover, in his second letter, Dr. Mains does not mention that other factors were noted to have caused the complained of symptoms. The fact that Dr. Mains is apparently one of the Veteran's treating physicians is not dispositive of the issue before the Board. The law mandates no "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420 (1998). The Veteran was afforded a VA examination in June 2011, during which the examiner noted the Veteran's medical history. After reviewing the Veteran's service treatment records and claims folder, and examining the Veteran, the VA examiner stated that the Veteran's heart disorder is less likely as not caused by or was aggravated by the Veteran's active military service. The examiner noted that there were no complaints or diagnosis of a heart condition or related symptoms in service. The VA examiner took the Veteran's subjective evidence that he had "indicators of heart disease" under consideration, but found that each one of the indicators was in fact not related to the Veteran's heart disease. See June 2011 VA Examination. Indeed, even the Veteran has reported that no physician with knowledge of his medical history has been able to state the onset of any cardiac disorder. Substantive Appeal, April 2007. The Board may, and will, consider in its assessment of service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd sub mon. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In sum, the preponderance of the evidence is against the Veteran's claim. The Board has considered the Veteran's allegation that the stress of his military duty caused the heart disorder. While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., shortness of breath; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of a medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Lathan v. Brown, 7 Vet. App. 359, 365 (1995). Moreover, as in Jandreau, the Veteran's assertion has been investigated and found without merit. ORDER An evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. A 10 percent disability evaluation for incomplete, mild left sided sciatic nerve peripheral neuropathy under 38 C.F.R. § 4.124a, Diagnostic Code 8520 is granted. Service connection for coronary heart disease is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs