Citation Nr: 1419953 Decision Date: 05/05/14 Archive Date: 05/16/14 DOCKET NO. 11-26 597 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for pericarditis. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to February 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Veteran testified before the undersigned Veterans Law Judge at a May 2013 videoconference hearing, and a transcript of this hearing is of record. In August 2013, the Veteran submitted additional evidence, but waived RO review. FINDING OF FACT Any pericarditis or residuals of such are not related to a disease, injury or event in service, to include Agent Orange exposure, and is not caused or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for pericarditis have not been met. 38 U.S.C.A. §§ 101, 1110, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) 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). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson v. West, 12 Vet. App. 247, 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). However, in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic by 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. In cases of aggravation of a veteran's non-service-connected disability by a service-connected disability, the veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.322. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). VA regulations also provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service: AL amyloidosis, chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus); Hodgkin's disease; chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e) (2013). A veteran, who during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. 39 U.S.C.A. § 1116(f) (West 2002); 38 C.F.R. § 3.307(a)(6)(iii) (2013). As noted above, the Veteran is seeking entitlement to service connection for pericarditis, which the Veteran believes had onset in service or was caused by his active military service. The Veteran has proposed several different theories of entitlement, including that an injury in service caused trauma to the chest, which in turn caused pericarditis. He has also suggested that his pericarditis developed secondary to either Agent Orange exposure or to his service connected hypertension. While the Veteran has alleged that trauma to his chest was incurred in an accident in service, the record does not support this contention. Service treatment records show that the Veteran was treated in November 1965 for a contusion of the right calf secondary to a crush injury, but no injury to the chest or heart is noted at that time or at separation from service. On a Report of Medical History completed in February 1966 at separation from service, the Veteran specifically denied shortness of breath, pain or pressure in chest, palpation or pounding heart, or other cardiac symptoms Post-service, the Veteran was first treated for pericarditis in April 1976, a decade after service, at Hutchinson Community Hospital. At that time, he did not report a prior history of similar symptoms. In September 1978, he was again treated for pericarditis, reporting at that time a two year history of similar symptoms. At his May 2013 hearing, the Veteran testified that after his 1965 leg injury, he was treated for a complaint of pain in the neck and shoulder and that he has experienced similar symptoms since that time. He has argued that these symptoms are evidence that his pericarditis had onset in service. However, the Board does not find the Veteran's statements to be credible. While the Board is prohibited from finding lay evidence not credible on the sole basis of a lack of contemporaneous medical records, in this case, the contemporaneous medical records affirmatively show that the Veteran did not have any heart problems at the time of his separation from service and that he specifically denied a number of symptoms that could have indicated heart problems. Furthermore, when the Veteran was first treated for pericarditis in 1976, he did not report a past history of similar symptoms and in 1978, he reported only a two year history of symptoms, providing additional evidence against his claim. His accounts on these occasions are highly probative, because he was reporting symptoms in the course of seeking medical treatment and then had no motive to misrepresent his medical history. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). The Board finds that the contemporaneous medical records provide evidence against the Veteran's claim and are more probative that the Veteran's present account of his medical history. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). In a July 2011 VA medical opinion, Dr. S.B. concluded that the Veteran's pericarditis was not caused by or the result of an illness or injury incurred during active service, finding that the Veteran's various theories of entitlement "do not have scientific or medical merit." He explained: [The] Veteran's service medical records include an entry 1/18/1966 for upper respiratory illness with left otitis media, antibiotic and decongestant prescribed. Records show hospital treatment, orthopedic service, 85th Evac Hospital Quin Nhon, Vietnam from 11/2/1965 to 11/18/1965 for contusion right calf, "AI undetermined pending investigation, LOD pensing inv." The admission note describes a crush injury to the right leg, cause not stated, one week prior to admission, followed by pain and swelling, treated at unit level with bed rest, hot soaks, and elevation without improvement. Nursing note indicates leg was crushed "between barrel and truck" with contusion right calf and ankle, a short leg cast applied, changed at least one time, he was discharged to full duty with normal physical profile on 11/18/1965 (16 days in hospital). There is no record of medications prescribed and none would have been indicated. X-ray of right tibia/fibula was negative. Veteran's separation Medical Exam 2/1966 makes no mention of heart disease. Veteran specifically denied shortness of breath, pain or pressure in chest, palpation or pounding heart or other symptoms on the SF 8, which he signed. The examiner also rejected the Veteran's contention that when he was treated for a duodenal ulcer in November 1969, he was actually suffering from pericarditis that was misdiagnosed. Dr. S.B. noted that the symptoms described by the Veteran are consistent with a diagnosis of a duodenal ulcer and are not typical for pericarditis. In a September 2012 VA medical opinion, Dr. M.O. addressed whether even if the Veteran's pericarditis did not have onset in service, an injury in service caused pericarditis ten years later. She concluded that This is not likely. In the first place, there is no documentation to indicate that the patient had trauma to the front of his chest or treatment for anything but his leg. Secondly, it would be essentially unheard of for a chest injury to take ten years to cause pericarditis. She further opined that the Veteran's pericarditis was most likely idiopathic in nature and had resolved without residuals. The Veteran has presented private opinions from Dr. J.B. of the Mayo Clinic Health System and K.S., N.P. that his pericarditis was caused by trauma sustained during his service. However, neither offers any rational for their opinion beyond the fact that they have talked with the Veteran and reviewed a small number of select documents provided by him. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (a medical opinion that contains only data and conclusions is accorded no weight). Furthermore, it appears that documents that provide evidence against the Veteran's claim, such as his service treatment records and records from Hutchinson Community Hospital showing treatment for pericarditis in 1976, were not reviewed. In cases such as this, where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. In Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993), the U.S. Court of Appeals for Veterans Claims (Court) stated: The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicators; . . . So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one examiner's opinion over another depending on factors such as reasoning employed by the examiners and whether or not, and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Here, the Board finds the opinions of the VA examiners to be far more probative than the private medical opinions submitted by the Veteran based both on the fact that the VA examiners reviewed the entire claims file, not just carefully selected records favorable to the Veteran, and on the thoroughness of the rationale offered by the VA examiners. The VA examiners discussed both the relevant evidence of record and the medical literature related to pericarditis. For the reasons discussed above, the Board finds that entitlement to service connection for pericarditis is not warranted on a direct basis. However, the Veteran has also suggested that service connection could be established on a secondary basis. Pericarditis is not one of the disabilities for which service connection can be granted on a presumptive basis based on exposure to herbicides, and the Veteran has not presented any competent medical evidence showing that he has pericarditis related to exposure to Agent Orange. Additionally, in a July 2010 VA medical opinion, Dr. S.B. concluded that it is less likely than not that the Veteran's pericarditis was caused or permanently aggravated by his service-connected hypertension with radiculopathy, noting that hypertension is not listed in medical sources as a cause of pericarditis. Following a review of the Veteran's claims folder, in November 2010, the VA examiner reiterated his opinion that the Veteran's pericarditis was less likely than not caused or permanently aggravated by the Veteran's active military service, stating that while there are many causes of pericarditis, hypertension is not recognized as one of them. Based on the above, the Board finds that entitlement to service connection cannot be granted on a secondary basis, due either to Agent Orange exposure or to service connected hypertension. The Board acknowledges that the Veteran has provided his own diagnosis of his symptoms and indicated the etiology; however, he has not demonstrated that he has any knowledge or training in diagnosing medical conditions. In other words, he is a layman, not a medical expert. The Board recognizes that there is no bright line rule that laypersons are not competent to offer medical opinions. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (rejecting the view that competent medical evidence is necessarily required when the determinative issue is medical diagnosis or etiology). Evidence, however, must be competent evidence in order to be weighed by the Board. Whether a layperson is competent to provide an opinion depends on the facts of the particular case. In Davidson, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) drew support from Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) for support for its holding. Id. In a footnote in Jandreau, the Federal Circuit addressed whether a layperson could provide evidence regarding a diagnosis of a condition and explained that "[s]ometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that the question of whether the Veteran currently has pericarditis or any residual symptoms thereof is too complex to be addressed by a layperson. While the Veteran is certainly competent to describe observable symptoms such as pain or stiffness, he is not qualified to diagnose the cause, as many disabilities could conceivably produce the symptoms the Veteran relates, including his arthritis of the cervical spine. Determining the proper diagnosis requires medical training. Hence, the Veteran's opinion of his current disability is not competent evidence and is entitled to low probative weight. The Board gives greater weight to the findings of the September 2012 medical examiner that the Veteran has no residual disability due to his past medical history of pericarditis. The Board finds that the question of whether the Veteran currently has pericarditis due to an injury or event in service, to include exposure to Agent Orange or as secondary to service connected hypertension, is too complex to be addressed by a layperson. This connection or etiology is not amenable to observation alone. Rather it is common knowledge that such relationships are the subject of extensive research by scientific and medical professionals. Hence, the Veteran's opinions of the etiology of his claimed disability are not competent evidence and are entitled to low probative weight. For all the above reasons, entitlement to service connection for pericarditis is denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). The Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2013). Here, the Veteran was provided with the relevant notice and information in a June 2010 letter prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). He has not alleged any notice deficiency during the adjudication of his claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim. Here, the Veteran's service records, VA records, and identified private treatment records have been obtained and associated with the claims file. The Veteran was also provided with VA examinations which, collectively, contain a description of the history of the disability at issue; document and consider the relevant medical facts and principles; and provide opinions regarding the etiology of the Veteran's claimed condition. VA's duty to assist with respect to obtaining relevant records and an examination has been met. 38 C.F.R. § 3.159(c); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Finally, the Veteran testified at a videoconference hearing before a member of the Board. The hearing was adequate as the Veterans Law Judge who conducted the hearing explained the issue and identified possible sources of evidence that may have been overlooked. 38 C.F.R. 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). ORDER Entitlement to service connection for pericarditis is denied. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs