Citation Nr: 1506695	
Decision Date: 02/12/15    Archive Date: 02/18/15

DOCKET NO.  12-23 730	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia



THE ISSUE

Entitlement to service connection for a heart disorder, to include as secondary to service-connected disabilities.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States



ATTORNEY FOR THE BOARD

M. Young, Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from July 1956 to July 1959 and from March 1960 to November 1976.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Huntington, West Virginia Department of Veterans Affairs (VA) Regional Office (RO).  In his August 2012 substantive appeal, the Veteran requested a Travel Board hearing.  He failed to report for such hearing scheduled in June 2014, and his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d).  In August 2014 this matter was remanded for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran is not shown to have a chronic heart disorder/ischemic heart disease.


CONCLUSION OF LAW

Service connection for a heart disorder, including as secondary to service-connected disabilities is not warranted.  38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303 , 3.304, 3.307, 3.309, 3.310 (2014).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  By correspondence dated in February 2011 and November 2014 VA notified the Veteran of the information needed to substantiate and complete his claim, to include what information and evidence he was responsible for providing and what evidence VA would attempt to obtain on his behalf, as well as how VA assigns disability ratings and effective dates of awards.  The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice was less than adequate. Any notice timing defect was corrected by the agency of original jurisdiction's (AOJ's) readjudicaiton of this matter (see January 2015 supplemental statement of the case) after adequate notice was provided.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

The Veteran's service treatment records (STRs) are associated with the record, and pertinent postservice treatment records have been secured.  VA examinations with respect to this claim were conducted in April 1977, May 2003 and October 2014.  As will be discussed in greater detail below, the Board finds the reports of these examinations (cumulatively) to be adequate for rating purposes, as they reflect a thorough review of the Veteran's medical history, the examinations included all pertinent findings, and the opinion offered on October 2014 VA examination includes adequate rationale.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Veteran has not identified any pertinent evidence that remains outstanding.  VA's duty to assist is met.  

Legal Criteria, Factual Background, and Analysis

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  In order to establish service connection for a claimed disability, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

Certain chronic disabilities (including cardiovascular disease) may be service-connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for cardiovascular disease).  38 U.S.C.A. §§ 1112 , 1137; 38 C.F.R. §§ 3.307 , 3.309. 

Secondary service connection may be established for a disability that is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Substantiating a secondary service connection claim requires evidence of: (1) a diagnosis of the disability for which service connection is sought; (2) a service-connected disability; and (3) that the current disability was either (a) caused or (b) aggravated by the already service-connected disability.  38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  Competent medical evidence is needed where the determinative question is one requiring medical knowledge.  Id. 

The Board notes that it has reviewed all of the evidence in the Veteran's record with an emphasis on the evidence relevant to this appeal.  Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim.

The Veteran's DD Form-214 reflects that he served in Vietnam, during the Vietnam Era..  If a Veteran, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam Era, and has one of the specified diseases [to include ischemic heart disease] associated with exposure to certain herbicide agents [to include Agent Orange], such disease shall be considered to have been incurred in service, as due to the exposure to herbicides.  See 38 U.S.C.A. § 1116.  

Ischemic heart disease includes "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina".  It does not include hypertension of peripheral manifestations of atherosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  See 38 C.F.R. § 3.309(3), and note 2, following.  

The Veteran presents alternate theories of entitlement; he claims service connection for a heart disorder/ischemic heart disease is warranted either on the basis that such disability is directly related to service (to include as due to exposure to herbicides, under 38 U.S.C.A. § 1116), or in the alternative, on the basis that a heart disorder was caused or aggravated by his service-connected hypertension and residuals of malaria. 

An April 1976 STR shows the Veteran was found to have a murmur of mitral regurgitation (with possible history of rheumatic fever).  An April 1976 chest x-ray was interpreted as showing no significant abnormalities, as was another chest x-ray the following month, that found no evident abnormality, and the heart seemed to be within normal limits.  On July 1976 service retirement examination, the Veteran noted he had heart trouble.  A cardiac anomaly (bicuspid aortic valve) was noted on clinical evaluation.  An August 1976 (subsequent to the service retirement examination) STR notes the Veteran was referred for an evaluation of cardiac murmur.  A soft systolic murmur had been described in old records in 1967 and 1972 but multiple other examinations found no murmur.  He had been evaluated for hypertension, and a persistent systolic murmur was noted.  He had no history of congestive heart failure, exertional dyspnea, orthopnea, PND [paroxysmal nocturnal dyspnea], syncope or chest pains.  An electrocardiogram (EKG) was within normal limits and a cardiac x-ray series was normal (not shoring chamber enlargement).  The impression was bicuspid aortic valve, mild aortic flow murmur.  

On May 2003 VA general medical examination, the Veteran denied a history of heart disease.  He denied angina, dyspnea, fatigue, dizziness, or syncope.  He had not had a myocardial infarction, congestive heart failure, or acute rheumatic disease.  He denied any cardiac surgery, valvular surgery, coronary artery bypass, cardiac transplantation, or angioplasty.  On examination, his heart had a regular rate and rhythm.  There was an occasional irregularity noted; on a cardiogram, it appeared as PVCs [premature ventricular contractions].  He had a systolic murmur that (to his knowledge) had been present since the 1970s.  There were no abnormal heart sounds.  The murmur was best heard at the left parasternal border and radiated into the left axilla.  Pulses of the upper and lower extremities were 3+ and equal bilaterally.  A cardiogram did not show left ventricular hypertrophy.  There was no history of a previous echo showing left ventricular hypertrophy and increased diastolic filling pressure (consistent with a history of hypertensive heart disease).  There were no arteriosclerotic complications of hypertension found.  There was no evidence of congestive heart failure.  The diagnosis was mitral valvular disease.  

On September 2012 VA infectious disease examination, the Veteran reported that in 1976 (at service discharge) a heart murmur was noted, and a cardiac work-up failed to reveal a source of the murmur.  He stated that the diagnosis of heart murmur was approximately 4 years after his affliction with malaria.  The examiner noted that while a murmur can be present with fever of any cause, there is no mention of murmur with the Veteran's malaria illness.  Fever induced murmurs generally resolve with the resolution of the fever.  The examiner noted further that the Veteran's record contains a note from an examination for "DI" (drill instructor) school in August 1967 (5 years prior to his malaria) stating "Systolic ejection murmur 2/6 at base, radiating to left sternal border, most likely functional."  

On October 2014 VA heart conditions examination, the Veteran reported that he was found to have heart murmur on service discharge examination.  He stated he had no further complaints.  He had a history of hypertension.  He did not have a history of heart attack or myocardial infarction or chest pains.  He denied any heart disease or condition.  Diagnostic testing included a normal EKG and echocardiogram (ECHO).  An exercise stress test was normal.  There was no diagnosis of a heart disorder.  The examiner noted that the Veteran did not "now have" nor had he ever had diagnosed , a heart disability; he emphasized "Veteran has NO ischemic heart disease."  It was noted that the Veteran himself admitted he never had any heart disease/disorder.  The VA examiner is an internist (who by virtue of training and experience is eminently qualified to provide an opinion in this matter.  His opinion reflects familiarity with the entire record, and includes rationale with citation to factual data.  It is probative evidence in this matter.  

The Veteran's own allegations that he has a heart disorder/ischemic heart disease are not competent (and probative) evidence on the question of whether the Veteran  has a heart disorder/ischemic heart disease.  While he is competent to observe he may have some cardiac symptoms and report that examiners have told him they found clinically observed cardiac anomalies (such as a murmur), whether the clinical findings represent an underlying heart disability entity is a medical question beyond the scope of common knowledge, and requiring medical training/expertise.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board.)  

A threshold legal requirement for substantiating a claim of service connection (whether direct or secondary) is that there must be evidence that the Veteran actually has the disability for which service connection is sought.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.310.  Here, while there are notations in the record of clinical findings that to a layperson might suggest the Veteran has a heart disorder/ischemic heart disease (e.g., PVCs, a heart murmur, or the impression of bicuspid aortic valve in service) the October 2014 VA internist who reviewed the record, and examined the Veteran opined, in essence, that he does not have an underlying heart disorder/ischemic heart disease.  That opinion is highly probative evidence, and in the absence of competent evidence to the contrary, is persuasive.

The evidence does not show that the Veteran has (or during the pendency of this claim has had) a chronic heart disorder/ischemic heart disease.  Absent competent evidence of a diagnosis of a heart disorder/ischemic heart disease, there is no valid claim of service connection for such disability.  See Brammer v. Derwinski, 3 Vet. App. 223 (1992).  Accordingly, the preponderance of the evidence is against the claim of service connection for a heart disorder, to include as secondary to service-connected disabilities, and the appeal in this matter must be denied.  

[The Veteran is advised that future evidence that he in fact has a heart disorder/ischemic heart disease may present a basis for reopening this claim.]


ORDER

Service connection for a heart disorder, to include as secondary to service-connected disabilities, is denied.


____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs