Citation Nr: 1339317	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  01-07 820	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease.


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney


ATTORNEY FOR THE BOARD

David Gratz, Counsel






INTRODUCTION

The Veteran served on active duty from September 1956 to March 1957, from February 1978 to February 1980, from April 1980 to August 1980, from April 1983 to October 1983, and from March 1985 to September 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2000 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).

This case has previously been before the Board.  In October 2003, the Board remanded the case for additional evidentiary development.  Following that development, in May 2005, the Board denied the Veteran's appeal.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In a January 2006 Order granting a joint motion, the Court vacated the Board's decision and remanded the case to the Board for further development and readjudication in compliance with directives specified.  To comply with the joint motion, the Board remanded the case in June 2006 with instructions to try to locate and obtain additional service medical records and to schedule the Veteran for an appropriate VA examination.  The Board also obtained a Veterans Health Administration (VHA) medical opinion in January 2008.  Following that development, in December 2008, the Board again denied the Veteran's appeal.  The Veteran appealed the Board's decision to the Court, and, in an October 2009 Order granting a joint motion, the Court vacated the Board's decision and remanded the case to the Board.  In December 2010, the Board obtained a second VHA opinion.  The Board then remanded the case in April 2011 in order to obtain an adequate medical opinion.  

In February 2013, the Board sought the independent medical expert (IME) opinion of a specialist outside VA, which was received in May 2013In July 2013, the Veteran and his attorney were provided a copy of the IME opinion and offered a period of 60 days to respond with evidence or argument.  In October 2013 written argument, the Veteran's attorney responded to the IME opinion and offered further support for the Veteran's appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The preponderance of the evidence shows that the Veteran's cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease, was not present in service or until many years thereafter and is not related to service or to an incident of service origin.


CONCLUSION OF LAW

The criteria for service connection for cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease have not been met.  38 U.S.C.A. §§ 1131, 1137, 1154(a), 5107(b) (West 2002); 38 U.S.C.A. §§ 3.102, 3.303, 3.307, 3.309 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence under 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159(b).

The duty to notify was satisfied by way of letters sent to the Veteran in July 2001 and July 2006 that informed him of his duty and the VA's duty for obtaining evidence.  In addition, the July 2006 letter met the notification requirements set out for service connection in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  The case was most recently readjudicated in a July 2012 supplemental statement of the case.

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran 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 relevant facts have been properly developed, and that all available evidence necessary for equitable resolution of the issue has been obtained.  The Veteran's available service treatment and personnel records, VA and private treatment records, and lay statements have been obtained.

After the Veteran submitted service medical records dated in 1983, which were not part of his service medical records obtained by the National Personnel Records Center (NPRC), VA made another attempt in July 2007 to determine whether any other service medical records existed which had not been associated with the claims file.  However, NPRC found no additional service medical records.  In addition, VA also requested medical records from Moncrief Army Community Hospital, as identified by the Veteran; however, that facility notified VA in an August 2006 letter that they had no records pertaining to the Veteran.

A VA medical opinion will be considered adequate if it (1) is based upon consideration of the Veteran's prior medical history, (2) describes the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one,'" Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991)), and (3) "supports its conclusion with an analysis that the Board can consider and weigh against contrary opinions."  Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007).  Although "[t]here is no requirement that a medical examiner comment on every favorable piece of evidence in a claims file" to render an adequate opinion, a medical examination report or opinion must "sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion."  See Monzingo v. Shinseki, 26 Vet.App. 97, 105 (2012); see also Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) ("a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.")  Here, the record reflects that the May 2013 medical expert used his expertise to draw conclusions from the totality of the evidence.  Contrary to the arguments advanced by the Veteran's attorney, his report discussed the medical and lay evidence of record with sufficient comprehensiveness and precision to render complete opinions and rationales.

The Veteran has also argued that obtaining an IME opinion was unwarranted and merely used for the sole purpose of obtaining evidence unfavorable to his claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  The Board disagrees.  In fact, the most probative evidence of record prior to the IME opinion weighed against the Veteran's claim.  Moreover, as noted in the Board's April 2011 remand, although Mariano states that it "would not be permissible for VA to undertake such additional development if a purpose was to obtain evidence against an appellant's case," Mariano, 17 Vet. App. at 312, the Court distinguished Mariano in Douglas v. Shinseki, 23 Vet. App. 19 (2009).  In Douglas the Court acknowledged its decision in Mariano, but held that VA may undertake the development of additional evidence if, as here, it is necessary to render an informed decision on the claim.  Douglas, 23 Vet. App. at 26.  Consequently, although the Board requested an IME opinion in an effort to assist the Veteran substantiate his claim, the IME opinion weighs against the claim.  In any event, VA has discretion to determine when additional information is needed to adjudicate a claim.  See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a Veteran for a medical examination where it deems an examination necessary to make a determination on the Veteran's claim); Shoffner v. Principi, 16 Vet.App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary).

This claim was remanded by the Board for additional development in October 2003, June 2006, and April 2011.  There has been substantial, if not full, compliance with the Board's remand directives, insofar as VA has complied with all notice obligations, requested additional in-service and post-service treatment records, provided the Veteran with adequate medical examinations and obtained adequate medical opinions.  D'Aries v. Peake, 22 Vet. App. 97 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran has not indicated there are any additional records that VA should obtain on his behalf.  Thus, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claims, and no further assistance to develop evidence is required.

Service Connection

The Veteran contends that his cardiovascular disease resulted from his service.  In support of his position, the Veteran cites to the opinions provided by Dr. G.R., his private cardiologist.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).

Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.  38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); 38 C.F.R. § 3.159(a)(2).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77.

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).

As a finder of fact, when considering whether lay evidence is credible, the Board may properly consider the internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).

Following a thorough review of the record, the Board finds that the preponderance of the evidence shows that the Veteran's cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease, was not present in service or until many years thereafter and is not related to service or to an incident of service origin.  Because the most probative evidence of record shows that the Veteran did not have an in-service incurrence or aggravation of a disease or injury, and because the most probative evidence of record shows that there is no nexus between the claimed in-service disease or injury and the present disability, service connection is denied.

First, the Board acknowledges that the Veteran has a current diagnosis of cardiovascular disease, including coronary artery disease diagnosed by, among others, the January 2012 VA examiner.

Second, however, the Veteran's service medical records make no reference to cardiovascular disease.  Instead they show that he was treated for respiratory problems, with no confirmed cardiac involvement.  A Service Medical Screening Summary, dated in October 1983, states that the data showed that one or more of the criteria for clearance for the Over-40 Physical Fitness Program was elevated or abnormal, therefore requiring that he be scheduled for "an internal medicine or cardiology consultation."  However, it does not appear that a cardiology consultation was performed pursuant to this request.

In July 1985, he was seen in the emergency room for complaints of shortness of breath.  It was noted that he was moderately tachypneic, with scattered wheezes without rales on auscultation, and using his accessory muscles of respiration.  He improved after being administered two doses of subcutaneous epinephrine and intravenous aminophylline and Solu-Medrol.  He was also given an inhaler and told to return if his symptoms worsened.

He returned the following day and was hospitalized for continued complaints of shortness of breath and wheezing.  It was noted that he had a history of cigarette smoking and seasonal allergic rhinitis.  He was treated in the intensive care unit (ICU) with intravenous and oral medications and inhalers.  He reportedly did reasonably well in the ICU and was moved to a general medical unit after two and a half days.  Despite repeated warnings the Veteran continued to smoke cigarettes in the hospital, which was believed to have lengthened his hospital stay.  On the day of his discharge from the hospital, he was reportedly still wheezing.  The diagnosis was bronchial asthma/bronchitis, exacerbated by cigarette smoking.  The Veteran was discharged from the military in September 1985.

Third, the most probative evidence of record shows that there is no nexus between the claimed in-service disease or injury and the present cardiovascular disorders.

Specifically, in February 1986, the Veteran was seen for continued complaints of wheezing, shortness of breath, tightness, and decreased exercise tolerance.  None of these symptoms, however, was attributable to a cardiovascular disorder.

In a January 1990 letter, Dr. M.D. explained that the Veteran had been suffering from obstructive sleep apnea since 1985 and that the previous diagnosis of bronchial asthma had been erroneous.  In addition, an April 1990 VA examination report noted that the Veteran had no cardiac problems, as X-ray revealed no evidence of active intrathoracic disease, an electrocardiogram (EKG) showed a normal sinus rhythm, and a physical examination revealed that his heart was not enlarged, had a regular sinus rhythm, and had no murmurs.

In August 1992, the Veteran was hospitalized at a VA facility for increasing dyspnea on exertion.  Following further evaluation, including pulmonary function testing, it was determined he had a mild restrictive ventilatory defect with a volume response to bronchodilators.  It was recommended he continue receiving treatment for that.  In November 1992, the Chief of the Pulmonary Section at a VA hospital reviewed the Veteran's medical records.  He noted that a VA sleep study in July 1990 had shown no evidence of significant sleep disordered breathing.  He also noted that further evaluation had concluded the Veteran may have had very mild exercise induced asthma and that the majority of his pulmonary function test abnormalities were most likely a result of his obesity.

In July 1998, the Veteran had a comprehensive evaluation at the Jacksonville, Florida, Mayo Clinic.  A pulmonary specialist carefully reviewed the history of the Veteran's respiratory manifestations and concluded his condition presented a complex clinical picture that included a form of globus hystericus.  He also indicated that repeatedly normal imaging studies, as well as the Veteran's relatively normal pulmonary function and his failure to respond to agents directed at his asthma, lent support to that diagnosis.

In December 1998, the Veteran was hospitalized after suffering an acute myocardial infarction.  It was noted the Veteran had a history of hypertension, hypercholesterolemia, and a questionable history of asthma.  No opinions as to etiology were provided.

In a December 1999 statement, Dr. G.R. noted he had been the Veteran's primary cardiologist since December 1998.  Dr. G.R. opined that that the Veteran did not have significant bronchial asthma and that more likely some of his breathing problems were due to an underlying coronary disease, which became clinically more evident with his myocardial infarction.  In an October 2000 statement, Dr. G R. reiterated his opinion that the Veteran's breathing difficulties were due to underlying coronary artery disease.  In support of his opinion, Dr. G.R. explained that after percutaneous revascularization in September 2000 the Veteran's symptoms of dyspnea had completely resolved.  Dr. G.R. thus concluded that, without question, the Veteran's dyspnea was predominantly due to underlying coronary artery disease and not pulmonology pathology.

A May 2003 VA examination report summarized the medical evidence of record and noted that, given the significance of the Veteran's respiratory/severe obstructive sleep apnea documented by an October 2002 sleep study, it was more likely the respiratory disorder was secondary to obstructive sleep apnea possibly dating back to 1985.  It was also noted that, given the Veteran's ejection fraction was slightly reduced at 50 percent, it was reasonable to suggest that his cardiovascular disease contributed to his respiratory symptoms.  However, the VA examiner did not indicate that the Veteran's cardiovascular disease was caused or aggravated by his respiratory symptoms.

In correspondence dated in September 2004, Dr. G.R. noted the Veteran had an extensive history of coronary artery disease, and that each time he had recurrent problems with myocardial ischemia and active coronary or graft disease, his initial presenting symptom had been dyspnea.  Dr. G.R. stated that "[u]ndoubtedly he had cardiovascular disease even back in 1985, likely counting for at least some, if not all of his respiratory symptoms during military service."

In September 2004, another VA examiner reviewed the Veteran's complete claims file and recorded his medical history is detail.  Specifically, he noted that, during the 1985 hospitalization for treatment of bronchial asthma, the Veteran responded well to therapy classically used for an asthma exacerbation.  He also noted the Veteran's long history of cigarette smoking and his diagnosis of hypertension in 1989, which, the examiner explained, is a well known factor in the development of coronary artery disease.  Finally, the examiner commented that he could find no substantial evidence to support Dr. G.R.'s statement that, "undoubtedly he had cardiovascular disease even back in 1985, likely accounting for at least some, if not all of his respiratory symptoms during his military service."  The VA examiner concluded that the Veteran's "well documented medical conditions including bronchial asthma, tobacco abuse, and obstructive sleep apnea ... were responsible for [his] respiratory symptoms during his military service.  There is no data to support cardiovascular disease as accounting for any of the Veteran's respiratory symptoms during military service."

Dr. G.R. wrote again in May 2006, indicating he had reviewed the medical records from 1985 and 1986, as well as VA compensation examination reports, and concluded those records did not alter his opinion that it was as likely as not the Veteran had cardiovascular disease as far back as 1985, "likely accounting for at least some of his respiratory symptoms during his military service."  Dr. G.R. said he based his opinion on his professional experience as a cardiologist for 10 years.

The case was referred to another VA physician in May 2007 for a medical opinion.  That examining physician also reviewed the Veteran's claims file and set forth his medical history in some detail.  In particular, the examiner commented that the treatment given the Veteran during the 1985 hospitalization - "repeated doses of beta adrenergic medications, especially injections of subcutaneous adrenaline" - would have been "absolutely contraindicated" and "a severe act of bad practice leading most likely, in this examiner's opinion, to arrhythmias and/or extensive myocardial infarction, and possibly even death," had there been "serious coronary risk" at the time.  Accordingly, the examiner disagreed with the opinion by Dr. G.R.  The examiner concluded there was "nothing to suggest any correlation between the symptoms the Veteran presented with, with his 1985 history of onset of asthma, versus his myocardial infarction in civilian life thirteen years later."  The VA examiner indicated he was basing his opinion on his 30 years' experience as a physician.

Pursuant to the Board's VHA request, the Chief of the Cardiology Section at a VA hospital submitted a negative medical nexus opinion in January 2008.  However, as the Court granted a Joint Motion in October 2009 that vacated and remanded the Board's December 2008 decision on the basis that the January 2008 medical opinion may not have been fully cognizant of the Veteran's past medical history, the Board assigns no probative weight to the January 2008 opinion in this decision.

In January 2012, another VA examiner submitted a negative medical nexus opinion report regarding the nature and etiology of the Veteran's cardiological disorder.  However, as the examiner wrote that he was unable to locate any lay evidence within the claims file, the Board finds that her opinion may likewise be inadequate, and thus is assigned no probative weight.

In May 2013, VA obtained a new opinion from an independent medical expert who is employed at a non-VA hospital.  The physician reviewed the case record and discussed the Veteran's pertinent medical history in great detail.  He opined that:

I cannot say that it is at least as likely as not that the respiratory symptoms in July, 1985 represented the onset of coronary artery disease.  Shortness of breath may be an angina equivalent, but there was no other objective supportive evidence such as an EKG abnormality, cardiopulmonary disease on X-ray, echocardiographic, or laboratory evidence of coronary disease.  Furthermore the veteran responded to therapy for respiratory disease....[C]oronary artery disease usually takes five years to manifest in nondiabetics.  It is possible to develop coronary artery disease at a young age with this veteran's risk factors of gender and tobacco use, but I cannot say with any certainty when his coronary atherosclerosis had its onset.  It is not at least as likely as not that it had its onset during his periods of active duty service.  There is no objective evidence of clinically significant coronary stenosis in 1985; while shortness of breath can be an angina equivalent in some patients, it would be purely speculative to assert that the shortness of breath in 1983-1985 was a sign of coronary atherosclerosis that manifested in 1998.  The veteran did respond to the current therapy for asthma during his service period.  It has been opined that his asthma and his exacerbations were due to coronary disease; however[,] patients with asthma are prone to exacerbations, especially when exposed to triggers such as cigarette smoke....In my opinion, while coronary atherosclerosis is a chronic process and could have started in the early 1980s in this veteran, it is less likely than not that it manifested 13 years later than accelerating earlier.

Based on the foregoing, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease.  The most probative evidence, as outlined above, indicates that the Veteran's respiratory problems in service were not due to cardiovascular disease, which developed many years after service.

As an initial matter, the Board notes that the preponderance of the evidence is against the finding of cardiovascular disease during the one year presumptive period after the Veteran's separation from active duty in September 1985.  Consequently, service connection for cardiovascular disease is not warranted on a presumptive basis.  38 C.F.R. § 3.307, 3.309.

Moreover, the Board finds that each of the probative negative nexus opinions discussed above-dated September 2004, May 2007, and May 2013-warrants greater probative value than Dr. G.R.'s opinions.  That is, the Board's finding that each negative nexus opinion outweighs Dr. G.R.'s opinions remains in effect even if one or more of the remaining negative nexus opinions are found by the Court to lack probative value or other indicia of adequacy.  In summary, any negative nexus opinions which are held inadequate are fully severable from the Board's factual finding that each of the remaining negative nexus opinions is sufficient to result in the conclusion that the preponderance of the evidence is against the finding of a nexus between the Veteran's current diagnosis and his service.  Where, as here, conflicting competent opinions are of record, the Board can ascribe greater probative weight to one opinion over another, provided that a rational basis is given.  Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).

The only positive medical nexus opinions linking the Veteran's cardiovascular disease to in-service respiratory problems are the opinions provided by Dr. G.R., his private cardiologist.  The Board, however, places greater probative value on the opinions provided by the September 2004, May 2007, and May 2013 physicians, who found that the Veteran's cardiovascular disease was less likely than not related to service, and that his respiratory symptoms in 1985 were less likely than not an early manifestation of heart disease.

The major deficiencies which significantly compromise the probative value of Dr. G.R.'s opinions are that they are not supported by sound rationale and are inconsistent with the medical evidence.  For example, in his December 1999 opinion, Dr. G.R. merely concluded that the Veteran's underlying breathing problems were due to an underlying coronary artery disease, with no supporting rationale for this conclusion.  In his October 2000 opinion, he attempted to support his opinion by pointing out that the Veteran's dyspnea had completely resolved in September 2000 after percutaneous revascularization was performed, which he believed clearly showed that the Veteran's dyspnea was predominantly due to underlying coronary artery disease and not pulmonology pathology.  In his September 2004 opinion, he made a similar observation that every time the Veteran was seen for active coronary disease, his initial symptom had been dyspnea.

Dr. G.R., however, appears to have completely ignored much of the evidence that conflicts with his conclusion.  For example, Dr. G.R. did not address the facts that: there was no cardiovascular diagnosis in service; the Veteran responded well in 1985 to therapy classically used for asthma; the Veteran did not report chest pain or other cardiovascular symptoms in 1985, or at any other time in service; both chest X-rays and an EKG performed in April 1990 were entirely normal; and a VA pulmonologist in November 1992 attributed the Veteran's respiratory problems to obesity.

Consequently, the Board finds that Dr. G.R. did not apply a reasoned analysis to the significant facts of this case in reaching his conclusion that the Veteran's cardiovascular disorder had its onset in service.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Thus, Dr. G.R.'s opinions are of limited probative value in this case.  Id.

In contrast, the Board places significantly greater probative value on the opinions provided by the September 2004, May 2007, and May 2013 physicians, which are supported by sound rationale, are consistent with the evidence of record, and specifically address the shortcomings of Dr. G.R.'s opinions.  In this regard, the VA physician in September 2004 reviewed the pertinent medical history before concluding: "[T]here is no data to support cardiovascular disease as accounting for any of the Veteran's respiratory symptoms during military service."  In reaching this conclusion, the VA physician pointed out that there was no evidence of cardiovascular disease in 1985, as the Veteran "responded well to therapy classically used for an asthma exacerbation."  The VA physician then pointed out that the Veteran's risk factors for heart disease included a long history of cigarette smoking and his diagnosis of hypertension in 1989, neither of which was mentioned by Dr. G.R.  He then commented that he could find no substantial evidence to support Dr. G.R.'s conclusion that the Veteran's cardiovascular disease dated back to 1985.

Another VA physician offered a similar explanation in May 2007, again after reviewing the pertinent medical history.  Based on his review of the medical records, he concluded there was "nothing to suggest any correlation between the symptoms the Veteran presented with, with his 1985 history of onset of asthma, versus his myocardial infarction in civilian life thirteen years later."  The VA physician pointed out that the treatment given during the Veteran's 1985 hospitalization - "repeated doses of beta adrenergic medications, especially injections of subcutaneous adrenaline" - would have caused significant damage, possibly even death, if the Veteran's symptoms were due to cardiovascular disease, as claimed by Dr. G.R.  Again, this fact was never acknowledged by Dr. G.R.  The May 2007 VA physician thus concluded that the Veteran's cardiovascular disease did not date back to service.

Lastly the May 2013 non-VA independent medical expert also disagreed with Dr. G.R.'s opinion that the Veteran's cardiovascular disease had its onset in service.  Specifically, in reaching his conclusion, he relied on the facts that the Veteran had responded to therapy for respiratory disease, coronary artery disease usually takes five years to manifest in nondiabetics, there is no objective evidence of clinically significant coronary stenosis in 1985, and the Veteran did respond to the current therapy for asthma during his service period.

The Board places significant probative value on the September 2004, May 2007, and May 2013 physicians' opinions, as they are based on an accurate review of the pertinent medical history, are consistent with the evidence of record, and are supported by sound rationale, unlike Dr. G.R.'s opinions which fail to mention many of the significant facts relied on by the VA physicians.  See Winsett v. West, 11 Vet. App. 420 (1998), aff'd 217 F.3d 854 (Fed. Cir. 1999).  In summary, the most probative medical evidence does not support the Veteran's claim that his cardiovascular disease had its onset in service.

In addition to this medical evidence, the Board has also considered the Veteran's lay statements in support of his claim.  However, lay evidence is not always competent evidence of a diagnosis or nexus-particularly where complex medical questions or the interpretation of objective medical tests are involved.  See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (rheumatic fever is not a condition capable of lay diagnosis).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge).  Here, the Veteran is competent to recognize shortness of breath.  However, because cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease, is a complex disorder not capable of lay observation under the circumstances of this case, and involves complex medical determinations aided by objective medical testing, the Board finds that the Veteran's lay statements as to an in-service diagnosis and nexus opinion lack probative value and cannot sustain a grant of service connection.

Significantly, the Veteran's cigarette smoking has been identified as one factor in his development of cardiovascular disease, and that the record indicates he was smoking in service.  Therefore, the Board has considered the argument that he became nicotine dependent in service, which ultimately caused his cardiovascular disease.  Since, however, he filed his claim in December 1999, service connection based on the use of tobacco products while in the military is expressly precluded.  Legislation was enacted prohibiting service connection for a death or disability on the basis that it resulted from an injury or a disease attributable to the use of tobacco products by a claimant during his military service, which applies to all claims filed after June 9, 1998.  See 38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.300.

For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim of service connection for cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease.  As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R.§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53- 56 (1990).  Thus, the Board has no discretion and must deny this claim.


ORDER

Service connection for cardiovascular disease, including residuals of a myocardial infarction and coronary artery disease, is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs