Citation Nr: 1338165 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 08-21 102 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for claimed coronary artery disease. 2. Entitlement to service connection for an innocently acquired psychiatric disorder. 3. Entitlement to service connection for a claimed headache disorder. 4. Entitlement to service connection for claimed sinusitis. 5. Entitlement to service connection for claimed bilateral hearing loss. 6. Entitlement to service connection for claimed tinnitus. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran had active service from December 1972 to November 1974. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the RO. In February 2012, the Board found that new and material evidence sufficient to reopen the previously denied claims of service connection for coronary artery disease and an innocently acquired psychiatric disorder had been received. The reopened claims were remanded for additional development. The case is once again before the Board. The issues of service connection for an innocently acquired psychiatric disorder, a headache disorder, sinusitis, bilateral hearing loss and tinnitus are being remanded to the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT 1. The Veteran is not shown to have manifested complaints or finding referable to a heart disorder in service or from many years thereafter. 2. The currently demonstrated coronary artery disease is not shown to be due to an event or incident of the Veteran's period of active service. CONCLUSION OF LAW The Veteran's disability manifested by coronary artery disease is not due to disease or injury that was incurred in or aggravated by service; nor may any be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION After the evidence has been assembled, the Board is responsible for evaluating the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013). Indeed, in Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet.App. 518, 519 (1996), citing Gilbert, 1 Vet.App. at 54. Furthermore, the Board notes that it has reviewed all of the evidence in the claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate the issue adjudicated herein and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet.App. 122, 128-30 (2000). I. The Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2013), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The law and regulations also require VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In March 2006, the Court issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet.App. 473 (2006) and held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board also notes that the Court has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet.App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess, supra. In the present case, VA issued a VCAA notice letter to the Veteran in November 2007, prior to the initial adjudication of his claim. This letter informed the Veteran of what evidence was required to substantiate his service connection claims and of his and VA's respective duties for obtaining evidence. The November 2007 letter also informed the Veteran as to the law pertaining to the assignment of a disability rating and effective date as the Court required in Dingess. In short, the record indicates that the Veteran received appropriate notice pursuant to VCAA. VCAA also provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In the present appeal, the Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In this capacity, in February 2012, the Board remanded the Veteran's appeal in order to gather additional treatment records, attempt to locate in-service hospitalization records, obtain his service personnel records, request his records from the Social Security Administration, and schedule him for a VA examination. The Veteran's claim was then to be readjudicated. The record reveals that AMC requested the appellant identify or submit any additional records he might have in a March 2012 letter. While the Veteran did not identify any additional private treatment records, his VA treatment records were obtained and associated with his claims file. The Veteran's records from the Social Security Administration and his service personnel records were also obtained and associated with his claims file. The Veteran was afforded an additional VA examination in February 2013 and his claim was readjudicated via the July 2013 SSOC. The record reflects that AMC did not attempt to obtain the Veteran's in-service hospitalization treatment records and the issue of service connection for an innocently acquired psychiatric disorder is being remanded, in part, to obtain these records. However, since the Veteran has indicated that he was hospitalized for a nervous breakdown, the records would have no bearing on his claim for service connection for coronary artery disease. As a result, there will be no harm to the Veteran in the Board proceeding to a decision on this issue. In short, there has been substantial compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet.App. 268, 271 (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); see also Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (although under Stegall VA is required to comply with remand orders, substantial compliance, not absolute compliance, is required). Further, the record contains the Veteran's records from the Social Security Administration, his complete service treatment records, his service personnel records, his post-service VA and private treatment records and VA examination reports. The Board has carefully reviewed the Veteran's statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In this capacity, the Board notes that the RO made multiple attempts to obtain VA treatment records from July 1978 to January 1979. In June 2013 the RO made a formal finding that such records were unavailable and notified the Veteran that efforts to obtain these records have been unsuccessful. VA has complied with its duty to assist in this regard. As will be discussed, the Veteran was provided with a VA examination in February 2013. The report of this examination reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate physical examination and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. Supporting rationale was also provided for the opinion proffered. See Barr v. Nicholson, 21 Vet.App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet.App. 295 (2008). The Board therefore concludes that the examination is adequate for adjudication purposes. See 38 C.F.R. § 4.2 (2013). The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2013). The Veteran has been accorded the opportunity to present evidence and argument in support of his claims. He has declined to exercise his option of a personal hearing. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and that no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. II. Law and Regulations In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2013). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See 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); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include arteriosclerosis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease' whether as manifested during service or manifested to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). III. Analysis The Veteran is seeking service connection for a heart disability. During an August 2007 VA examination, the Veteran stated that he began experiencing chest pains during service as a result of a heart condition. He further reported that he was placed on a physical profile for three weeks as a result of a heart disability. Upon review, the service treatment records document that the Veteran complained of chest pain in December 1974. These complaints, however, were attributed to bronchitis. The service treatment records do not document any treatment or diagnosis referable to heart disease. In a self-report of medical history completed at the time of his separation from service, the Veteran denied ever experiencing heart trouble or palpations or a pounding heart. A clinical evaluation revealed that his heart and vascular system were normal. Phrased differently, the Veteran's heart and cardiovascular system were examined in November 1974 and a disease process was not identified; rather he had a heart and denied having any pertinent pathology. Further, the Veteran's service treatment and service personnel records do not indicate that he was ever placed on a physical profile due to a heart disorder. While the Veteran is competent to report on factual matters of which he has first-hand knowledge (see Washington v. Nicholson, 19 Vet.App. 362, 368 (2005)), his recollections of in-service events are inconsistent with the evidence contained in the claims folder, including his denial of any heart problems at his separation from service. As such, the Board finds that his description of in-service events to be unreliable, and therefore of limited probative weight, . See Curry v. Brown, 7 Vet.App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In this case, the Board places far greater probative value on the normal contemporaneous service department records, the normal November 1974 separation examination, and his denial of heart problems when separating from service than it does on the more recent statements of the Veteran, made in connection with his claim for monetary benefits from the government. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). Such records are more reliable, in the Board's view, than the Veteran's unsupported assertions of what occurred during service. The Veteran's statements are self-serving and are unsupported by his service records. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Accordingly, the Board finds the Veteran's statements to be lacking in credibility and probative value. Accordingly, based on the absence of an in-service disease or injury, the second Shedden element has not been met, and the Veteran's claim fails on his basis alone. For the sake of completeness, the Board will briefly address the remaining two Shedden elements. Luallen v. Brown, 8 Vet.App. 92, 95-6 (1995), citing Holbrook v. Brown, 8 Vet.App. 91, 92 (1995) (the Board has the fundamental authority to decide a claim in the alternative). Following his separation from service, the Veteran was afforded a VA examination in January 1979 which revealed that his heart was "not enlarged to percussion." There was a regular sinus rhythm with no murmur, and his peripheral pulses were normal. The first evidence of a heart disease comes from a January 1980 electrocardiographic record that revealed "left ventricular hypertrophy by voltage criteria." To the extent the Veteran contends that he has a chronic heart disability which began during service, the Board notes that a heart disability was not "noted" during service or within one year of separation. In addition, there were no characteristic manifestations sufficient to identify the disease entity during service or within one year of separation. 38 C.F.R. § 3.303(b). As such, service connection may not be granted on a presumptive basis. Nor may service connection be established based on continuity of symptomatology. Currently, the Veteran has been diagnosed with coronary artery disease. See the February 2013 VA examination. Pursuant to the Board's remand, the Veteran was afforded a VA examination in February 2013 to determine the likely etiology of his heart disorder. After a review of the Veteran's claims file and performing a clinical examination, the VA examiner opined that that there was less than a 50 percent probability that the Veteran's current heart disability was related to his active duty service. In explaining his opinion, the examiner noted that the Veteran's service treatment records do not describe any symptoms consistent with heart disease and that it "would be very unlikely that he would have coronary artery disease at" such a young age. Instead, the examiner noted that his current coronary artery disease resulted from several longstanding risk factors including smoking, diabetes mellitus, and hypertension. The Board has considered the Veteran's statements that his heart disability is the result of his active duty service. The Board is cognizant that lay evidence may be sufficient to establish a nexus in some cases. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran's opinion is lacking in specifics and is therefore accorded less probative value than the opinion described above. In sum, for these reasons and bases, the Board finds that the preponderance of evidence is against the Veteran's claim of service connection for a heart disability, as the second and third Shedden elements have not been met. The benefit sought on appeal is accordingly denied. ORDER Service connection for heart disorder is denied. REMAND After having carefully considered the matter, and for the following reasons, the Board believes that the remaining issues must be remanded for further development. In June 2013, the Board remanded this claim, in part, to gather in-service hospitalization treatment records. Specifically, the Board observed that the Veteran had reported that he was hospitalized at Fort Knox, Kentucky in 1972 for a nervous breakdown. See a December 1991 statement. Following the Board's remand, the AMC obtained a complete set of the Veteran's service treatment records, but did not attempt to obtain his in-service hospitalization treatment records. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that compliance with remand instructions is neither optional nor discretionary. 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. Because the RO failed to comply with the Board's remand instructions in the current appeal, this issue must be remanded so that the requested evidentiary development may be accomplished. In addition, pursuant to the Board's remand, the Veteran was afforded a psychiatric examination in July 2013. After a review of the record, the VA examiner stated that the Veteran's service treatment records do not document any psychiatric problems or psychiatric treatment. The Board notes, however, that in his November 1974 separation examination, the Veteran complained of having nervous trouble. A physician reviewing the Veteran's comments noted that he experienced occasional situational nervous trouble. Under these circumstances, a new nexus opinion must be obtained. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2013) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Finally, in a June 2013 rating decision, the RO denied the Veteran's claims of service connection for a headache disorder, sinusitis, bilateral hearing loss and tinnitus. In a June 2013 statement, the Veteran expressed disagreement with the denial of service connection. When there has been an initial RO adjudication of a claim and a timely Notice of Disagreement has been filed (see 38 C.F.R. §§ 20.201, 20.302(a)), thereby initiating the appellate process, the claimant is entitled to receive a fully responsive Statement of the Case (SOC). As an SOC, addressing the Veteran's claims of service connection for a headache disorder, sinusitis, bilateral hearing loss and tinnitus, has not yet been issued. A remand is therefore necessary. See Manlincon v. West, 12 Vet.App. 238 (1999). Accordingly, the remaining issues are REMANDED for the following action: 1. The RO should take all indicated action to contact the National Personnel Records Center (NPRC) and/or any other possible repository, and attempt to obtain records relating to the Veteran's claimed 1972 hospitalization at Fort Knox, Kentucky. The organization to which the Veteran was assigned, to include the company, battalion, regiment, etc., should be specified. Any available alternate sources of verification of such medical treatment, to include Surgeon General Office (SGO) reports, and/or sick call reports, should also be requested. If no records are available, that should be noted in the Veteran's VA claims folder. 2. Then, the RO should arrange for an appropriate health care provider to review the Veteran's claims file and provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent probability or greater, that any current psychiatric disability had its clinical onset in service or otherwise is due to an event or incident of his period of active duty. In rendering an opinion, the examiner is asked to comment on the Veteran's November 1974 separation examination which documents his complaints of nervous trouble. A complete rationale for all opinions expressed should be provided. 3. The RO should take all indicated action to furnish the Veteran with a Statement of the Case pertaining to the issues of service connection headache disorder, sinusitis, bilateral hearing loss and tinnitus. This should include providing the Veteran with appropriate notice of his appellate rights. This issue should be returned to the Board only if an appeal is timely perfected 4. After undertaking all indicated development, the RO should readjudicate the issue of service connection for an innocently acquired psychiatric disorder in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should provide the Veteran with a fully responsive SSOC and afford him a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters 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 or by the Court 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). ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs