Citation Nr: 1342958 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 06-20 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a chronic disability manifested by chest pains, increased heart rate, and heart murmurs, to include as due to undiagnosed illness or other qualifying chronic disability pursuant to 38 U.S.C. § 1117. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to June 1994. These matters initially came before the Board of Veterans' Appeals on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran has moved several times during the pendency of the appeal; the Buffalo RO is the current agency of original jurisdiction (AOJ). The Board remanded the case, most recently in May 2013, for further evidentiary development and adjudication. The agency of original jurisdiction (AOJ) sought the Veteran's private post-service treatment records; however, the Veteran did not respond to the AOJ's request for information and consent concerning the identified records. The AOJ scheduled the Veteran for VA examination, which was carried out in August 2013, and then provided him with a supplemental statement of the case (SSOC) in August 2013, in which the AOJ again denied his claim. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). FINDINGS OF FACT 1. The Veteran had active military service in the Southwest Asia Theater of operations during the Persian Gulf War. 2. The Veteran does not exhibit a chronic disability manifested by chest pains, increased heart rate, and/or heart murmurs s that had its clinical onset during service or is otherwise related to active duty. He does not exhibit a qualifying disability manifested by chest pains, increased heart rate, and/or heart murmurs from an undiagnosed illness or a chronic multi-symptom illness manifested to a compensable degree. CONCLUSION OF LAW A disability manifested by chest pains, increased heart rate, and heart murmurs, to include an undiagnosed illness, was not incurred or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi, 17 Vet. App. 412 (2004), held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. This decision has since been replaced by Pelegrini v. Principi, 18 Vet. App. 112 (2004), in which the Court continued to recognize that typically a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, VA satisfied its duties to the Veteran in VCAA letters issued in September 2004, February 2005, October 2011, August 2012, and June 2013. The VCAA letters notified the Veteran of what information and evidence is needed to substantiate his claim of service connection, what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the types of evidence necessary to establish a disability rating and effective date. Id.; but see VA O.G.C. Prec. Op. No. 1-2004 (Feb. 24, 2004); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of any notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.) See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Board also finds that VA has complied with all assistance provisions of VCAA, to include compliance with the May 2013 Remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The evidence of record contains the Veteran's service treatment records and lay statements of the Veteran, as well as post-service treatment from both private and VA treatment providers. The evidence of record contains examination requested by VA performed in August 2013. Such examination report is thorough and contains sufficient information to decide the issue on appeal. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue on appeal. Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in 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 occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, certain chronic disabilities, such as psychoses, are presumed to have been incurred in service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307, 3.309. 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 was incurred in service. 38 C.F.R. § 3.303(d). A Persian Gulf veteran is defined as a veteran who served on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War. See 38 U.S.C.A. § 1117(f); 38 C.F.R. § 3.317(d). A "qualifying chronic disability" includes (a) undiagnosed illness, (b) a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or (c) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. See 38 C.F.R. § 3.317(a)(2); see also 75 Fed. Reg. 61,995-97 (2010). Under 38 U.S.C.A. § 1117(a)(1), compensation is warranted for a Persian Gulf veteran who exhibits objective indications of a "qualifying chronic disability" that became manifest during service on active duty in the Armed Forces in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent during the presumptive period prescribed by the Secretary. Effective December 29, 2011, VA extended the presumptive period in 38 C.F.R. § 3.317(a)(1)(i) through December 31, 2016 (for qualifying chronic disabilities that become manifest to a degree of 10 percent or more after active duty in the Southwest Asia theater of operations). See 76 Fed. Reg. 81,834-36 (December 29, 2011). Furthermore, the chronic disability must not be attributed to any known clinical disease by history, physical examination, or laboratory tests. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a), (b). The term "objective indications of a qualifying chronic disability" includes both "signs," in a medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. See 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or a chronic multi-symptom illness include the following: fatigue, unexplained rashes or other dermatological signs or symptoms, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the upper or lower respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 U.S.C.A. § 1117(g) . There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). A service connection claim must be accompanied by evidence that establishes that the claimant currently has the claimed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). Service personnel records reflect that the Veteran had active service in the Persian Gulf while stationed on board the USS Chosin in 1992. Thus, he is a Persian Gulf War Veteran within the meaning of the applicable statute and regulation. The question remains, however, as to whether the record supports a finding that his claimed disorder is a manifestation of an undiagnosed illness or other qualifying chronic disability associated with his Persian Gulf War service. Relevant evidence of record consists of the Veteran's service treatment records, as well as records of private and VA post-service treatment. Service treatment records are negative for complaints of chest pains, increased heart rate, heart murmurs, or any other manifestations of a cardiac disability, although the Veteran was noted to have sinus bradycardia, or decreased heart rate, on a March 1994 electrocardiogram. At his April 1994 separation medical examination, the Veteran's cardiovascular system was clinically evaluated as normal. Post-service records reflect that the Veteran was seen on several occasions in 1998 and 1999 for complaints of chest pain and occasional heart palpitations. However, at each such visit-in July, November, and December 1998-the Veteran was found to have normal heart rate and rhythm with no palpitations or murmurs; similarly, no elevated heart rate was noted at any time, and radiological evaluation of the Veteran's chest in December 1998 was normal. Similarly, on multiple treatment visits in 2001 the Veteran reported occasional palpitations and chest pains, but no clinical findings were made at any time, and a chest x-ray done in June 2001 was normal. Since the filing of the instant claim in January 2004, the Veteran has continued to seek treatment from VA treatment providers, and complained in January and September 2004 of experiencing occasional chest pain. However, in November 2004, an electrocardiogram was normal, and the Veteran specifically denied experiencing any chest pain at a December 2005 treatment visit. In addition, at a March 2006 treatment visit he specifically denied experiencing any cardiovascular symptoms. Similarly, at each such visit, he was found to have a normal heart rate and rhythm, with no palpitations, elevated heart rate, or heart murmur noted. A November 2004 chest x-ray was also normal. Similarly, on multiple occasions during 2012, the Veteran was seen for other complaints and was noted to have a normal heart rate and rhythm, with no murmur. He specifically denied experiencing chest pain at treatment visits in both February and March 2012. In addition, the Veteran underwent a Gulf War Registry examination in November 2004. At that time, he complained of occasional chest pain, heart murmur, and palpitations, but denied experiencing symptoms at the examination. He was noted to have a "very light murmur," but otherwise no cardiovascular symptoms were noted. He further underwent VA examination in August 2013 pursuant to the Board's May 2013 remand. At that time, the examiner found that the Veteran did not exhibit any signs or symptoms of a cardiac disorder and assigned no diagnosis. In so finding, the examiner noted that the Veteran's heart rate was regular, with no murmur and a normal pulse rate. Further, the Veteran himself denied experiencing a heart murmur or any other diagnosed heart condition and stated only that he had experienced palpations "associated with anxiety in the past." No murmur or chest pain was observed. The examiner reviewed the Veteran's treatment records and concluded that there was no evidence of any heart murmur, increased heart rate, or chest pain at any time during the appellate period, although she acknowledged that the Veteran had a remote episode of chest pain in 1998, prior to the filing of the instant appeal. Upon review of the evidence of record, the Board has determined that service connection is not warranted for a disability manifested by chest pains, increased heart rate, and heart murmurs. Service treatment records and post-service private and VA outpatient treatment records have been reviewed and are negative for any chronic complaints or diagnoses of a cardiac disability. To warrant entitlement to service connection for such a disability under 38 C.F.R. § 3.317, the evidence would need to show a condition characterized by chronic or recurrent symptoms. In this case, there are isolated complaints from the Veteran that he has suffered from chest pains, increased heart rate, and heart murmurs, but comprehensive testing has failed to reveal any associated disability. The August 2013 VA examiner noted that the Veteran denied experiencing chest pains, heart murmur, and "any diagnosis of a heart condition;" objective testing was normal. Further, there is no evidence at this time of chronic cardiac disability manifested to a compensable degree at any time during the appeal period. See 38 C.F.R. § 4.104, Diagnostic Codes 7000-7020 (2013). In that connection, the Board notes that, despite the Veteran's complaints of chest pain, heart murmur, and increased heart rate, the evidence does not establish that these symptoms are chronic or have manifested to a degree of at least 10 percent at any time during the appeal period. To that end, the Board notes that no congestive heart failure, dyspnea, fatigue, angina, dizziness, or syncope has been noted, nor has the Veteran been found to have any cardiac abnormality on repeated radiological examination. No coronary artery disease is present; the Veteran has not experienced a myocardial infarction or atrial fibrillation documented by testing. He has not had any surgery to treat any cardiac disorder, nor has he been shown to have any cardiomyopathy or hypertensive heart disease. The Board finds that the Veteran has not displayed symptoms of any cardiac disorder to warrant a rating of at least 10 percent at any time during the appellate period, under any Diagnostic Code that governs diseases of the heart as set forth in 38 C.F.R. § 4.104, Diagnostic Codes 7000-7020. The Board has considered the Veteran's contention that a relationship exists between his claimed cardiac disorder and symptoms experienced during service. In adjudicating this claim, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368- 69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witness's personal knowledge. See also 38 C.F.R. § 3.159(a)(2) (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In this case, the Board finds the Veteran is competent to attest to his symptoms. However, the Board finds compelling the fact that Veteran himself has not contended that he has continued to experience chronic symptoms such as chest pains, increased heart rate, or heart murmurs from his time in service to the present. To the contrary, the Veteran has, on multiple occasions, denied experiencing such symptoms when asked by both his VA treatment providers and his August 2013 VA examiner. The Board has weighed the Veteran's statements with the medical evidence of record, to include the service treatment records and post-service medical evidence, and after weighing the lay and medical evidence, the Board finds that the lay evidence is less convincing than the objective medical evidence of record and of less probative value here. The negative clinical and documentary evidence post service for many years after service is more probative than the remote assertions of the Veteran. Further, the Veteran himself has denied on multiple occasions, including at his August 2013 VA examination, that he currently experiences any cardiovascular symptoms. The lack of continuity of treatment may bear in a merits determination on the credibility of the evidence of continuity of symptoms by lay parties. Savage v. Gober, 10 Vet. App. 488, 496 (1997). In essence, the Veteran does not exhibit a chronic cardiac disability that had its clinical onset in service or that is otherwise related to active service. He does not exhibit objective manifestations of a qualifying chronic disability to a compensable degree. The Board notes that in the absence of proof of a present disability or any complaints related to chronic or recurrent symptoms, there can be no valid claim, including under the provisions allowing service connection based on an undiagnosed illness. See 38 C.F.R. § 3.317; Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of any competent evidence of a cardiac disability or documentation of complaints of chronic or recurrent symptoms related to the cardiovascular system, the Board must conclude the Veteran does not currently suffer from such a disability, undiagnosed or otherwise. For these reasons, service connection is not warranted. In conclusion, a preponderance of the evidence is against a finding that the Veteran experiences a chronic disability manifested by chest pains, increased heart rate, and heart murmurs that began in or is causally related to his active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for a chronic disability manifested by chest pains, increased heart rate, and heart murmurs is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs