Citation Nr: 1417401 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 08-04 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for right bundle branch block pattern. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadia Kamal, Associate Counsel INTRODUCTION The Veteran had active service from November 1978 to December 1983, from November 2001 to October 2003, and from November 2004 to April 2006. He also served in the U.S. Air Force Reserve, presumably with periods of active duty for training (ACDUTRA) and inactive duty training service (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board further notes that it remanded this claim in December 2013 for additional development. The Board acknowledges that the Veteran submitted a timely notice of disagreement with the issues of entitlement to service connection for sinusitis, chronic headaches and residual surgical scars on his back in the March 2007 rating decision. In a January 2008 rating decision, the Veteran was granted entitlement to service connection for sinusitis with chronic headaches. This is considered a complete grant of the benefit sought on appeal and so, the Board has limited its consideration accordingly. Additionally, the statement of the case issued in January 2008 properly addressed the issue of entitlement to service connection for residual surgical scars to the back. However, in his January 2008 substantive appeal, the Veteran expressly limited his appeal to the issue of entitlement to service connection for a right bundle branch block. Therefore, the Board has limited its consideration accordingly. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDING OF FACT The currently demonstrated right bundle branch block pattern is a laboratory finding and is not a disease or injury within the meaning of applicable legislation. CONCLUSION OF LAW The claim of service connection for right bundle branch block pattern is denied. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013), 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. They 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 the Secretary 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the 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 v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in November 2006 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The November 2006 letter also provided the Veteran with appropriate notice with respect to the disability rating and effective date elements of his claim. The Board also finds the Veteran has been afforded adequate assistance in response to his claims. The Veteran's VA medical center notes are on record. The Board takes note that an Unavailability of Complete Service Medical Records Memorandum dated March 2007 notes that all of the Veteran's service medical records are unavailable for review. All efforts to obtain the records have been exhausted, but the records are not available. Therefore, there is no bar to proceeding with a final decision at this time. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. The Board acknowledges that VA has been afforded a VA examination specifically addressing the claim of entitlement to service connection for a right bundle branch block in January 2014. When VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations obtained in this case are more than adequate, are predicated on a full understanding of the Veteran's medical history, and provide a sufficient evidentiary basis for the claim to be adjudicated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). Accordingly, the Board will discuss the merits of the claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110; 1131, 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002)); see also Caluza v. Brown, 7 Vet. App. 498 (1995). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 1507 (West 2002); 38 C.F.R. § 3.102 (2013); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis In the case at hand, the Veteran asserts that in 1983, upon his separation from his first period of service he was afforded a full physical examination in order to join a city police department. As part of this full physical he was afforded an electrocardiogram (EKG), which revealed that he had a right bundle block in his heart. The Veteran asserts that prior to this examination he has never been advised that he has a right bundle branch block. He further asserts that the finding of this condition resulted in a requisite stress test, which then cleared him for hire as a police officer. The Veteran has submitted an April 1989 letter from his private physician stating that he has this right bundle block pattern since 1983. In addition to confirming the finding, the physician also noted that this heart pattern was no reason for concern and should not cause restriction of physical activity or of any activity whatsoever. The Board concedes that the Veteran has right bundle branch block. Turning to the first element of Shedden, consideration next is given to whether the aforementioned finding constitutes a diagnosis of a disability. Disability is "defined by the federal government" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last or has lasted for a continuous period of not less than 12 months." Dorland's Illustrated Medical Dictionary, 1843 (31st ed. 2007). With regard to the Veteran's condition, the Merck manual states that "[b]undle branch block usually causes no symptoms. . . is not serious in itself, and may occur in apparently healthy people." See The Merck Manual Home Health Handbook. Further, the discovery of a right bundle block on an EKG is considered a lab finding, and does not inhibit any of the Veteran's substantial gainful activity by reason of any impairment. Therefore, such a finding is not recognized as a disability for VA benefits purposes. See 38 U.S.C.A. §§ 101(16), 105(a) (West 2002); 38 C.F.R. § 3.303(c) (2013). Moreover, and significantly, there is no evidence showing that the Veteran's right bundle branch block has resulted in a disability. Additionally, in a February 2007 VA general examination, the Veteran denied any cardiac symptoms such as palpitations, dizziness, syncope, dyspnea, fatigue or history of chest pain. An examination of his cardiovascular system was normal and the examiner made a finding of right bundle branch block. Although the Veteran's right bundle branch block is not considered a disability for VA purposes, in a July 2013 VA examination for an increase in obstructive sleep apnea (OSA) and his atrial fibrillation the Veteran stated that since 2011 he had experienced three episodes of atrial fibrillation with rapid response. In addition, the Veteran was afforded an electrocardiogram (EKG), which revealed atrial fibrillation with rapid response with premature ventricular or averrantly conducted complexes, and also confirmed right bundle branch block. Further, the EKG showed an abnormal coronary artery angiogram, described as diffuse non-occlusive coronary atherosclerosis with normal ejection fracture. Moreover, in May 2013 was diagnosed as suffering from coronary atherosclerosis. With regard to the 2013 VA examination and the Veteran's May 2013 diagnosis of coronary atherosclerosis, the Veteran currently has heart disabilities. However, in the July 2013 examination, although the examiner noted a history of right bundle block, he did not opine as to whether the right bundle block caused any of the Veteran's current heart disabilities. To determine if the Veteran's current heart disabilities were etiologically related to his right bundle branch block, the Veteran was afforded a VA opinion in January 2014. The opining physician considered the Veteran's claims file, as well as his medical history, including his diagnoses of atrial fibrillation and coronary atherosclerosis due to lipid rich plaque. The examiner stated that the Veteran's current heart disabilities were less likely than not related to his right bundle branch block. The physician's rationale was based upon several factors, including a study conducted that showed men with right bundle block showed no significant association with risk factors for, or the presence of, ischemic heart disease, myocardial infraction, or cardiovascular deaths. Therefore, the Veteran's claim fails for no current disability. Even if the Board were to accept that the Veteran's claims that right bundle branch block has the potential to lead to worse heart disabilities, there is no indication from the record that it is related to the Veteran's active service. Therefore, his claim would also fail as there is no medical opinion linking his current right bundle branch block to any existing in-service disease or injury. In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting that his right bundle branch block can be a warning sign of other, more serious heart conditions. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Although the Veteran is competent to report that he was diagnosed with right bundle branch block, he is not competent to provide either a medical opinion that such is a medical disability for VA purposes, or to provide a nexus. The Board notes that there is no evidence that the Veteran possesses the requisite medical training or expertise necessary to render him competent to offer evidence on matters such as a medical diagnosis or the causal questions of whether his right bundle branch block is a disability or resulted in a current heart disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board emphasizes that there exists a persuasive VA medical opinion that weighs against the Veteran's claim. The Veteran's assertions opining that his right bundle branch block puts him at risk for future heart problems is outweighed by the medical evidence to the contrary. Therefore, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right bundle branch block is not warranted. ORDER Entitlement to service connection for a right bundle branch block is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs