Citation Nr: 1336352 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-28 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a heart disorder other than a systolic murmur, to include coronary heart disease (CAD) and hypertension as secondary to a service-connected systolic murmur. 2. Entitlement to an initial compensable rating for a systolic heart murmur. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from March 1969 and March 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, denied entitlement to service connection for a heart condition. Jurisdiction over the claims file is currently held by the RO in Roanoke, Virginia. The Veteran testified before the undersigned Veterans Law Judge at the RO in February 2010. A transcript of the hearing is of record. The case was previously before the Board in May 2010 and January 2011 when it was remanded for additional development. In March 2012, the Board denied the claim for entitlement to service connection for a heart disorder and remanded the claim for a compensable initial rating for a systolic murmur. The Veteran appealed the denial of the claim for service connection to the Court of Appeals for Veterans Claims (Court). In January 2013, the Court granted a Joint Motion for Remand filed by the parties, which requested that the portion of the March 2012 decision that denied service connection for a heart disorder be vacated and remanded. The appeal has now returned to the Board along with the claim for an increased rating for a systolic murmur. The issue of entitlement to an initial compensable rating for a systolic murmur is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A heart disorder other than a systolic murmur, diagnosed as CAD and hypertension, was not manifested within one year from the Veteran's discharge from service, is not the result of a disease or injury in service, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW A heart disorder other than a systolic murmur, currently diagnosed as CAD and hypertension, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred therein, and it is not proximately due to or the result of a service-connected disability. 38 U.S.C.A. §§ 1110, 1112 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that service connection is warranted for a heart disorder other than a systolic murmur as it was incurred due to active military service. In the alternative, he contends that the heart disorder is secondary to a service-connected systolic murmur. The Veteran testified during the February 2010 hearing that he was physically normal before entering into active duty, but stress associated with his military service (stemming from his official duties and family life) was the cause of his current heart problems. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). When a chronic disease is shown in service sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.309(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases, such as hypertension, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Turning first to service connection on a direct basis, the record clearly establishes the presence of a current disability. Upon VA examination in January 2011, the Veteran was diagnosed with CAD status post stent placement and hypertension. He has also received treatment for these heart conditions with VA and private physicians throughout the claims period. The evidence also establishes an in-service injury. Although service records are negative for treatment or complaints related to CAD or hypertension, a systolic murmur was noted at the examination for separation in February 1971. The Veteran has also reported undergoing a great deal of stress during his active duty service; he testified in February 2010 that he was under significant pressure in the context of his official service duties and due to marriage troubles and his newborn child requiring surgery. The Veteran also testified that he was under orders twice to serve in Vietnam, though he was never actually deployed. The Veteran is competent to reports injuries during service, and the Board finds his statements along with the finding of an abnormal heart and systolic murmur at separation establish the second element of service connection-an in-service injury. Regarding the third element of service connection, a nexus between the Veteran's current heart disability and the in-service injuries, the Board notes that service records do not indicate such a link. As noted above, hypertension and/or CAD was not diagnosed during active duty. The Veteran's blood pressure was normal during the February 1971 separation examination and while a systolic murmur was observed at that time, it was the only cardiac abnormality recorded on the examination report. The Veteran also specifically denied a history of high blood pressure, pain or pressure in the chest, or palpitation or pounding of the heart on the February 1971 report of medical history. Thus, service records do not document any indications of chronic CAD or hypertension during active duty. There is also no medical evidence of hypertension within a year from the Veteran's discharge from active duty service to allow for service connection on a presumptive basis. See 38 C.F.R. § 3.307, 3.309. The Veteran has reported the onset of hypertension in the late 1980s, but this dates the onset of the disability more than 15 years after separation from active duty. The claims file also does not contain any post-service medical evidence documenting hypertension until November 2005, though the Veteran stated in April 2008 that his early medical records were lost due to an office fire. In any event, it is clear that the Veteran was not diagnosed or treated for hypertension until more than a decade after his separation from service. The absence of any clinical evidence for years after service weighs the evidence against a finding that the Veteran's hypertension was present in service or in the year immediately after service. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). The weight of the competent evidence is also against the claim. In March 2008, the Veteran's private physician provided a letter in support of the claim, stating that the Veteran's hypertension was "possibly" related to stress that occurred during military service. The Board finds that this statement is of very little probative value as it is clearly speculative. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992); see also Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Opinions which can only make the necessary connection between the current disorder and the Veteran's military service by resorting to mere speculation amount to "nonevidence," neither for nor against the claim, because service connection may not be based on speculation or remote possibility. See generally Bloom v. West, 12 Vet. App. 185 (1999) (a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty). See also 38 C.F.R. § 3.102 (when considering application of the benefit-of-the-doubt doctrine, reasonable doubt is one within the range of probability, as distinguished from pure speculation or remote possibility). In contrast, the record contains very probative VA opinions weighing against the claim for service connection. In July 2010, a VA examiner determined that the Veteran's hypertension was not related to active duty service. After examining the Veteran and reviewing the complete claims file, the examiner noted that the Veteran's service records were completely negative for any evidence of increased blood pressure and the Veteran himself dated the onset of his disability to 1988, almost 20 years after his military separation. Similarly, in January 2011, a second VA examiner opined that the Veteran's CAD was not due to active service. The examiner observed that the Veteran had many risk factor for heart disease (including hypertension, diabetes, high cholesterol, and his gender) and service records did not document any heart abnormalities other than a systolic murmur. The medical opinions issued by the VA examiners were based on an accurate history of the Veteran's CAD and hypertension and were supported by specific evidence from the claims file. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The Board has considered the Veteran's statements connecting his CAD and hypertension to service and notes that lay persons are competent to provide opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The specific issue in this case, however, whether the Veteran has a heart disorder due to service, falls outside the realm of common knowledge of a lay person. Jandreau, 429 F.3d at 1377 (lay persons not competent to diagnosis cancer). The Veteran is competent to report observable symptoms, but his opinion as to the cause of the symptoms simply cannot be accepted as competent evidence. Id. Additionally, while service connection is possible for hypertension as a chronic disease under 38 C.F.R. § 3.303(b) with a showing of a continuity of symptomatology, the Veteran has not reported a history of continuing symptoms since service. The Veteran testified in February 2010 that he first noticed the onset of symptoms of hypertension in the late 1980s when he "was feeling bad" and a doctor at his place of employment diagnosed him with hypertension. He has never reported experiencing symptoms associated with hypertension or any other heart condition in the years between active duty service and his initial diagnosis of the condition. Thus, service connection under 38 C.F.R. § 3.303(b) is not warranted. The competent evidence of record is therefore against a nexus between the Veteran's CAD, hypertension, and active duty service. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim for service connection on a direct basis. The Board must now determine whether service connection is warranted for the claimed heart disorders on a secondary basis. Service connection is provided for a disability which is proximately due to, the result of, or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran contends that his service-connected systolic murmur has caused or aggravated his current CAD and hypertension. There is no competent evidence in support of the claim for secondary service connection. None of the Veteran's treating VA or private physicians have linked his claimed heart disorders to the service-connected systolic murmur, and as noted above, the Veteran is not competent to provide an opinion regarding the etiology of his claimed disability. Jandreau, 429 F.3d at 1377. Additionally, the January 2011 VA examiner opined that the Veteran's CAD was not caused or aggravated by the service-connected systolic murmur. The Veteran manifested many independent risk factors for CAD and there was no documentation in the medical literature that valvular heart disease causes or aggravates CAD. The examiner did not provide an opinion regarding the Veteran's hypertension, but as noted above, there is simply no competent evidence in support of a link between the Veteran's hypertension and heart murmur. In sum, the post-service medical evidence of record shows that the first evidence of the Veteran's claimed disability was years after his separation from active duty service. In addition, there is no competent medical evidence that the Veteran's CAD and hypertension are related to active duty service or service-connected systolic murmur. The weight of the evidence is therefore against a nexus between the claimed disability and active duty service or a service-connected condition. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim and it is denied. 38 U.S.C.A. § 5107(b) (West 2002). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) defined VA's duties to notify and assist a veteran in the substantiation of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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; (3) and that the claimant is expected to provide. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In this case, notice fulfilling the requirements of 38 C.F.R. § 3.159(b) with respect to direct service connection was furnished to the Veteran in a March 2007 letter. The Veteran also received notice regarding the disability-rating and effective-date elements of the claim in the March 2007 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has not received VCAA notice with respect to his claim for service connection on a secondary basis. He has not alleged any prejudice resulting from the lack of notice on the secondary service connection element of the claim. Prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective; (2) what evidence the appellant would have provided or requested that VA obtain had VA fulfilled its notice obligations; and (3) how the lack of notice and evidence affected the essential fairness of the adjudication. Id; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful). The Veteran has not alleged that the lack of notice in this case has had any impact on the essential fairness of the case. In addition, the record contains evidence of actual knowledge on the part of the Veteran concerning the claim for secondary service connection. The Veteran contends that his CAD and hypertension were caused by the service-connected systolic murmur first observed on the February 1971 military separation examination. He has therefore demonstrated actual knowledge of the requirements for establishing service connection on a secondary basis and the lack of such notification did not result in prejudice to the Veteran. VA is also required to make reasonable efforts to help a claimant obtain evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to a claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development in this case has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records and the Veteran submitted private treatment records from Family Healthcare Associates of Southwestern Virginia, Stone Mountain Health Services William A. Davis Clinic, and Dr. D.B. He was also provided an opportunity to set forth his contentions during the February 2010 hearing before the undersigned Veterans Law Judge. Additionally, the Veteran was afforded VA medical examinations and medical opinions in July 2010 and January 2011. In May 2010, the Board remanded the Veteran's claim to allow for the procurement of additional VA treatment records and the scheduling of a VA examination. In January 2011, the Board again remanded the case for another VA examination and medical opinion considering whether the Veteran's heart disorder, other than systolic murmur, was secondary to his service-connected systolic heart murmur. Subsequent to the May 2010 Board remand, additional VA treatment records were obtained and associated with the claims file and the Veteran was afforded a VA medical examination in July 2010. After the January 2011 Board remand the Veteran was afforded a VA medical examination in January 2011. Therefore, based on the foregoing actions, the Board finds that there has been compliance with the Board's May 2010 and January 2011 remands. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002). As discussed above, the record is entirely negative for competent evidence of a link between the Veteran's hypertension and service-connected systolic murmur. Although the Veteran has stated that his hypertension is secondary to his heart murmur, his lay opinion does not constitute competent evidence in support of the claim. See Jandreau, supra. The evidence of a link between current disability and service must be competent to trigger VA's duty to obtain a medical opinion. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). As there is no competent evidence in support of the claim for service connection for hypertension on a secondary basis, a VA medical opinion is not required by the duty to assist. The Veteran's representative contends that the January 2011 VA medical examination is inadequate as the examination report, which was prepared by a nurse practitioner, was not signed by a physician. The Veteran's representative cites to the M21-1MR manual in making this assertion. The Board notes that the Court rejected the argument that a medical examination conducted by a VA nurse practitioner was inadequate in Cox v. Nicholson and held, "[w]e have never required, nor do we intend to do so here, that medical examinations under section 5103A only be conducted by physicians." Cox v. Nicholson, 20 Vet. App. 563, 568 (2007) (citing Goss v. Brown, 9 Vet. App. 109, 114 (1996) (upholding VA nurses' statements regarding medical nexus as well-grounded medical evidence) and Williams v. Brown, 4. Vet. App. 270, 273 (finding opinions of a VA registered nurse therapist to be competent medical evidence)). In addition, the Board notes that review of M21-1MR, Part III, Subpart IV, Chapter 3, Section D 18(a) reads in relevant part that "[a]ll original examination reports must be signed by a physician, unless the examination was performed by a . . . mid-level Veterans Health Administration (VHA) clinician, such as a physician's assistant or nurse practitioner, when the examination does not require a specialist." As the examination was signed by a nurse practitioner the Board finds that it is adequate. Significantly, neither the appellant nor his representative have 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. Hence, 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. 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 v. Principi, 16 Vet. App. 183 (2002). For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. ORDER Entitlement to service connection for a heart disorder other than a systolic murmur, to include CAD and hypertension and as secondary to service-connected systolic murmur is denied. REMAND In its March 2012 decision, the Board remanded the claim for entitlement to an initial compensable rating for a systolic heart murmur for the issuance of a statement of the case (SOC) in accordance with Manlicon v. West, 12 Vet. App. 238 (1999). Service connection for a systolic murmur was granted in an August 2010 rating decision with an initial noncompensable rating assigned effective March 27, 2006. The Veteran disagreed with the assignment of an initial compensable evaluation in September 2010 and initiated the current appeal. The record before the Board does not indicate that the Veteran has been provided a SOC as ordered by the Board in March 2012, and the Board must again remand the claim to allow for the issuance of a SOC. See Stegall v. West, 11 Vet. App 268 (1998) (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). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC to the Veteran and his representative on the issue of entitlement to an initial compensable rating for a systolic heart murmur. The Veteran should also be informed of the requirements to perfect an appeal with respect to this issue. 2. If the Veteran perfects an appeal with respect to this matter, ensure that any indicated development is completed before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs