Citation Nr: 1615561 Decision Date: 04/18/16 Archive Date: 04/26/16 DOCKET NO. 12-21 859 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection of a heart disorder, to include aortic stenosis. 2. Entitlement to service connection for a recurrent leg disorder, to include post-operative leg injury residuals and scars. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. T. Callahan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 16, 1967 to November 22, 1967. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the benefits sought on appeal. This claim was previously before the Board in June 2014, at which time the claim was remanded to the Agency of Original Jurisdiction (AOJ) in order to afford the Veteran a videoteleconference hearing. Subsequent to this remand, the Veteran was scheduled for a hearing on September 24, 2014; however, the Veteran failed to appear for this hearing. The Board has also not received any showing of good cause for this failure to appear, and so the Veteran's request for a hearing is deemed to be withdrawn. See 38 C.F.R. § 20.704(d). FINDINGS OF FACT 1. The Veteran's heart disorder pre-existed his service, and it is not shown to have been permanently worsened, beyond the natural course of the disorder. 2. The Veteran's right leg disorder has not been shown to be causally or etiologically related to any disease, injury, or in-service incident. CONCLUSIONS OF LAW 1. The criteria for service connection of the Veteran's heart disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.306 (2015). 2. The criteria for service connection of the Veteran's right leg disorder are not met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), and implementing regulations, impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice must inform the claimant of any information and evidence not of record that: (1) is necessary to substantiate the claim; (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held 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 the claim for VA benefits. In this case, an August 2011 letter, sent prior to the initial unfavorable decision of this claim in February 2012, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the Veteran was advised of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman. Accordingly, the Board finds that the VA has satisfied its duty to notify the Veteran, as required by the VCAA. With respect to the VA's duty to assist the Veteran in developing this claim, a review of the record reveals that the Veteran's service treatment records have been obtained, as have the Veteran's post-service VA medical records and any identified private treatment records. Moreover, the Veteran has not identified any additional, outstanding records that have not been requested or obtained. The Veteran was also afforded VA medical examinations of the claimed conditions in September 2011 and November 2011. The Board finds that such VA examinations and accompanying opinions are adequate to decide the issues presented in this case. With respect to the Veteran's heart disorder, the Board finds that these examination, and the accompanying opinions are predicated on an interview with the Veteran; a review of the record, to include his service and post-service treatment records with diagnostic testing results; and a direct physical examination. Further, any opinions proffered considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). With respect to the Veteran's leg disorder, the Board finds that this examination is adequate to decide the issue at hand, namely, whether the Veteran experienced an in-service incident which would support service connection, as will be discussed below. Accordingly, the Board finds that VA's duty to assist has been met. II. Analysis As was noted above, both of the Veteran's claims in this case are seeking service connection of a disability. Generally, service connection may be granted when the evidence shows (1) the existence of a current disability; (2) in-service incurrence 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). However, should a service member enter service with a preexisting condition, that condition may only be service connected when the record indicates that the condition was aggravated by an in-service incurrence of a disease or injury. 38 C.F.R. § 3.306. The term "aggravation" has been defined to mean a permanent worsening of the disability beyond the natural course of the condition. See 38 C.F.R. § 3.306(a). In order to find that a Veteran entered service with a preexisting medical condition, the Veteran's induction examination must include a notation by the medical examiner, in the examination report, of such a condition. Simply relating medical history of the Veteran does not serve to establish a preexisting medical condition. See Crowe v. Brown, 7 Vet. App. 238, 245 (1995). If no such notation exists, then the Veteran is presumed to be sound when he entered service. See 38 C.F.R. § 3.306(a). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). However, while lay evidence is competent to establish the presence of observable symptomatology, and "may provide sufficient support for a claim of service connection", it is not competent to establish a diagnosis or etiology, except in very specific situations. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Finally, in assessing these claims, the Board notes that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary, and therefore the Board, must give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Heart Disorder With respect to the Veteran's claimed heart disorder, the Board notes at the outset that the Veteran was noted to have a history of a heart murmur when he entered service. Specifically, a review of the Veteran's induction examination reveals a notation by the examining doctor stating that the Veteran had a prior heart murmur, though it was unknown if the Veteran had cardiac damage. Examination of the heart at that time was nevertheless normal. Therefore, because the Veteran's induction examination report does not contain a formal finding of any cardiac abnormality at the time, the Veteran is presumed to have been medically sound when he entered service with regard to his heart, despite the examiner's acknowledgement of the Veteran's history of heart murmurs. 38 C.F.R. § 3.306(b); Crowe v. Brown, 7 Vet. App. 245. This presumption, if not overcome, entitles the Veteran to establish service connection for the disorder in question as any other ordinary service connection claim would be established, which was detailed above. However, this presumption of soundness may be overcome by a showing that the record contains "clear and unmistakable evidence" that the disorder in question preexisted the Veteran's service. If the presumption of soundness is overcome by clear and unmistakable evidence, the Veteran is entitled to a presumption that the preexisting disorder in question was aggravated by his service, and thus it is entitled to service connection. 38 C.F.R. § 3.304(b). This presumption of aggravation; however, may also be overcome by a showing of clear and unmistakable evidence that the disorder in question was not aggravated by the Veteran's service. 38 C.F.R. § 3.304(b). The term "clear and unmistakable" is defined in applicable regulations to mean "obvious or manifest". 38 C.F.R. § 3.304(b). This term has been further defined by the Court of Appeals for Veteran's Claims (Court) as meaning that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Furthermore, the Court has said that this standard is intended to be an "onerous" one. See Horn v. Shinseki, 25 Vet. App. 231, 234-35 (2012). Accordingly, because the Veteran is presumed to be sound when he entered service, the VA must show that it is undebatable that the Veteran's heart disorder preexisted his entry into service and that his service did not aggravate his heart disorder in order to deny the Veteran service connection. To that point, the record shows that the Veteran entered service on October 16, 1967. He first complained of any cardiac difficulties on October 31, 1967, at which time he complained of chest pains. On November 4, 1967 the Veteran underwent a physical examination, at which time the examiner again noted the Veteran's history of heart murmurs and found his heart to be abnormal in the examination report. The Veteran was then examined on November 7, 1967 as part of a Medical Board review, at which time his cardiac history and condition was noted by the examiner. As part of this examination, a narrative summary was prepared. In this report, the examiner noted that the Veteran had experienced complications from a cardiac condition since age 13, and reported that in September of 1966 the Veteran underwent a cardiac catheterization, which revealed a congenital aortic stenosis of an undetermined degree. The examiner also reported that since entering service, the Veteran had experienced "moderately exertional dyspnea," and he noted a "loud, rough, ejection systolic murmur." At this time, a chest x-ray was also performed, which showed "slight dilation of the ascending aortic valvular stenosis." Based on this examination, the examiner then diagnosed the Veteran with congenital aortic stenosis, and he concluded that the Veteran should be presented to a Medical Board, as he did not meet the induction standards. On November 8, 1967, the Veteran reported to the on-site medical facility again complaining of chest pain around his heart and exertional dyspnea, at which time he was sent to the emergency room. The Veteran's case was then reviewed by a Medical Board on November 13, 1967. The report of this Board is contained in the Veteran's service treatment records, and it shows that the Medical Board concluded that the Veteran was fit for service, and that his service had not aggravated his heart condition. During this review, the Veteran stated his desire not to continue on active duty. The Veteran's wish not to continue service is further corroborated by a Personnel Action request he submitted to his commanding officer on November 4, 1967 in which he requested discharge from service because he did not meet the induction requirements when he enlisted. The Veteran was then discharged from service on November 22, 1967, at which time he certified, in writing, that his medical condition had not changed since his last examination. Subsequent to his service, the record indicates that the Veteran underwent a heart valve replacement in September 2009. As was noted above, the record also includes the VA examinations of his heart in September and November 2011. During the Veteran's September 2011 examination, the examiner found the Veteran's heart to be of normal size and rhythm, though signs of a prosthetic heart valve were noted. The examiner then diagnosed the Veteran as having had an aortic valve replacement and a resection of an aneurysm of the ascending aorta. The examiner then offered his opinion that the Veteran's heart disorder was less likely than not aggravated by his service. In support of this opinion, the examiner explained that the Veteran was only in service for five weeks, and that his heart valve replacement was performed at the age of 60, which is the normal course for such a disorder. Furthermore, the examiner stated that the length of time between the Veteran's service and his need for a valve replacement indicated that the time in service did not cause the valve to deteriorate. During the Veteran's November 2011 examination, the Veteran was again found to have normal heart size, though the Veteran's prosthetic was noted. After this examination, the Veteran was diagnosed as being status post aortic valve replacement. This examiner offered no opinion as to the aggravation of the Veteran's heart disorder. This being the most salient evidence with respect to this claim, the Board finds it undebatable that the Veteran's heart disorder preexisted his military service. As was noted above, the induction medical examiner did state that the Veteran had a history of a heart murmur. Furthermore, the medical review conducted in November 1967 found that the Veteran had experienced congenital aortic stenosis since the age of 13. In short, nothing in the record contradicts a finding that the Veteran's aortic stenosis preexisted his service, to include the Veteran's own lay statements. This evidence is adequate and entirely supports a finding that the Veteran's heart disorder began before service. Therefore, the Board finds that there is clear and unmistakable evidence that the Veteran's congenital aortic stenosis existed prior to his entry into service. In addition, the Board finds that the record contains clear and convincing evidence that the Veteran's heart disorder was not permanently worsened beyond the natural course of the condition. In making this decision, the findings of the Medical Board carry great weight, as they constitute expert opinions. Moreover, the contemporaneous nature of the findings of the Medical Board lends great credence to their opinion, as contemporaneous examinations are generally more able to assess a patient's condition at the time than an examination several decades later would be. The adjudicative weight of the Medical Board findings is also bolstered by the opinion of the September 2011 examiner, who opined that the Veteran's heart disorder was not aggravated by his service, as it was following the natural course of the disorder. The examiner also opined that the length of time between the Veteran's service and his heart surgery indicated that his service did not cause his valve deterioration. These opinions carry appreciable weight in this case because they were formed after a recent direct examination of the Veteran, which included an interview with the Veteran. Furthermore, these opinions carry weight in this case because they were formed with the benefit of a review of the Veteran's entire claims file, which contains the Veteran's medical history. As such, the examiner was able to conduct a longitudinal review of the Veteran's medical history before offering an opinion as to any aggravation of the Veteran's heart disorder. Moreover, this opinion is supported by clear and convincing rationale that is consistent with the record. The Board notes the Veteran's contentions that his service worsened his pre-existing heart disorder. However, because of the medical training and experience of the Medical Board and the September 2011 examiner, the Board finds these opinions more probative on the matter of aggravation than that of the Veteran. The Veteran is certainly competent to report his symptomatology, which he did both during service and in more recent statements. However, with regard to providing an opinion as to whether certain symptomatology represents a permanent worsening of a disorder beyond its natural progression, the Board finds that this involves a complex medical question that is outside the purview of laypersons. For that reason, VA obtained an opinion from a medical professional, who is competent in that regard. The Veteran's representative has argued that the record shows a worsening of the Veteran's condition because of his service, given that the Veteran was accepted for service and then quickly thereafter became unable to perform active duties. However, such facts are not reflected in the record. Rather, record shows that after the Veteran began to complain of cardiac difficulties, a Medical Board concluded that the Veteran was still fit for active duty and that his service had not aggravated his heart disorder. The Veteran requested discharge on medical grounds, he was not forcibly discharged because of his medical condition, and so the arguments of the Veteran's representative are not convincing. As such, the evidence of record shows that it is clear and unmistakable that the Veteran's heart disorder was not aggravated by service. Since there is clear and unmistakable evidence both that the congenital aortic stenosis existed prior to service and was not aggravated during service, service connection is not warranted for the Veteran's currently diagnosed heart disorder. His current diagnosis is status-post aortic valve replacement, which the VA medical records show was due to the aortic stenosis that existed prior to service. The claim must be denied. B. Right Leg Disorder With respect to the Veteran's right leg disability, the Veteran has reported that he experiences abnormal motion of his right leg, as well as weakness in the leg. The Veteran has further stated that this condition began in service. However, the Veteran did not identify any acute in-service incident or injury related to his right leg. The Veteran has stated that he believes his disorder was caused by the running he performed during his brief time in service. That said, the Veteran's service treatment records contain no evidence of any preservice difficulty with his right leg, and his service medical records show no complaints from the Veteran of any difficulties with his lower extremities while in service. The Veteran's service medical records also contain no evidence that the Veteran experienced any kind of in-service injury or incident which would implicate his right lower extremity. In fact, in a medical history report from November 1, 1967, the Veteran denied any difficulties with his legs, and during his separation examination on November 4, 1967, his lower extremities, and musculoskeletal system, were all found to be entirely normal. In fact, the Veteran's records contain no information relating to his right leg until his June 2011 claim for service connection of a right leg injury. Since that time, the Veteran has contended in the record that this impairment onset November 23, 1967, and that he required surgery for it on November 24, 1967. The Veteran has also contended that during this November 1967 surgery, he was told that the impairment was due to a service injury. The record contains no documentary evidence of such a procedure or finding. The Board notes that the Veteran was discharged from service on November 22, 1967, and at the time he certified that his medical condition had not changed since the November 4, 1967 examination which found his lower extremities and musculoskeletal system to be normal. The first documented medical evidence relating to the Veteran's right leg came in the November 2011 VA examination. During this examination, the medical examiner did note that the Veteran's right leg was 2 centimeters longer than his left leg, though this difference did not appear to cause any abnormal weight bearing, and the Veteran did not require an assistive device of any kind. The examiner also noted a scar on the Veteran' right lower leg, which was lateral from the proximal tibia to the distal tibia. However, the examiner noted that this scar was asymptomatic and that it was superficial with no underlying tissue damage. The examiner then also examined the Veteran's tibia and fibula, both of which were normal. Furthermore, an x-ray of the Veteran's right tibia and fibula revealed only "scattered vascular calcifications" with no evidence of fracture dislocation or malunion. With this evidence in mind, the Board finds that the Veteran does have a current disability, given the objective measurement that his right leg is 2 centimeters longer than his left leg. However, the Board finds that there is no credible evidence that the Veteran experienced any in-service injury or incident which could be causally or etiologically related to his current disability. As stated above, the Veteran's service records contain no evidence that he experienced any acute in-service injury or incident implicating his right leg. The Board does recognize the Veteran's allegation that his current disorder is due to the running he performed in service; however, the Board also notes that the Veteran's medical records contain no evidence that he sought treatment for any difficulties with his lower extremities while in service, or shortly thereafter. Of particular note is the Veteran's Report of Medical History, dated November 1, 1967, in which he stated that he had never experienced any difficulties with his lower extremities. This is a signed, sworn document completed by the Veteran during his service. This statement is of particular note given that the Veteran stated on November 22, 1967, just prior to discharge, that his condition had not changed since his November 4, 1967 examination. Additionally, the Board finds the Veteran's statements regarding the history of his right leg symptomatology to be not credible. As noted above, the Veteran's recent statements that his right leg symptomatology began during service is contradicted by the Veteran's reports in November 1967 that he had no medical history associated with his lower extremities and that his health at separation had not changed since he had been examined earlier in the month. Furthermore, the substance of the Veteran's more recent statements is that his right leg symptomatology began on November 23, 1967. While this is only one day after separation, it is not during active duty. The day before the Veteran now says that his right leg symptomatology began, on November 22, 1967, the Veteran certified in a signed statement that his health had not changed since he was last examined, when his lower extremities were normal. This evidence is, at best, contradictory and cannot be relied upon to show that there was an in-service event that could have caused the Veteran's currently diagnosed right leg disorder. There is no evidence other than the Veteran's unreliable statements to suggest such an in-service injury or event. Therefore, the Veteran's claim fails on this basis. Because the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not implicated, and the Board must deny this claim as well. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection of the Veteran's heart disorder, to include aortic stenosis, is denied. Service connection of the Veteran's right leg disorder, to include post-operative leg injury residuals and scars, is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs