Citation Nr: 1733014 Decision Date: 08/14/17 Archive Date: 08/23/17 DOCKET NO. 10-41 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disorder, to include myocardial infarction, status post open heart surgery, implantation of a pacemaker/defibrillator, and congestive heart failure, to include as due to exposure to ionizing radiation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from December 1957 to August 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction of the appeal has since been transferred to St. Petersburg, Florida. Prior adjudicative actions by VA addressed the Veteran's heart disability claim as two separate claims, one of entitlement to service connection for a myocardial infarction, status post open heart surgery and implantation of a pacemaker/defibrillator and one of entitlement to service connection for congestive heart failure, and both to include as due to exposure to ionizing radiation. However, in light of the July 2014 VA heart conditions examination report, which provided an overall diagnosis of ischemic heart disease, the Board has recharacterized the two separate claims more broadly as a single claim to include any heart disability. See Brokowski v. Shinseki, 23 Vet. App. 79 (2009) (holding that a claimant may adequately identify the disability for which compensation benefits are sought by referring to a body part or system that is disabled, or by describing the symptoms of that disability). The Veteran's September 2009 VA Form 9, substantive appeal, reflected his desire to participate in a hearing before a member of the Board. The Veteran was scheduled to testify at a hearing before the Board in April 2012. However, in April 2012 correspondence, the Veteran's representative withdrew the Veteran's hearing request. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. 38 C.F.R. § 20.704 (e) (2016). This matter was previously before the Board in March 2013 and March 2016, at which time it was remanded for additional evidentiary development and consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT The Veteran's currently diagnosed heart disorders did not have their onset during active duty service; did not manifest within one year of separation from active duty service; and are not otherwise etiologically related to service, to include his exposure to ionizing radiation therein. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disorder, diagnosed as ischemic heart disease, status post myocardial infarction with coronary artery bypass graft, and implantation of pacemaker/defibrillator with congestive heart failure, have not been met. 38 U.S.C.A. §§ 1131, 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants. VA's duty to notify was satisfied by a letter sent in November 2008. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA also has a duty to assist a veteran in obtaining evidence necessary to substantiate a claim, which includes providing an adequate medical examination or opinion when necessary. 38 U.S.C.A. § 5103A ;38 C.F.R. § 3.159. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations, and describes the disability in sufficient detail to enable the Board's evaluation to be fully informed. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that VA has satisfied its duty to assist. The claims file contains the Veteran's service records, supporting lay statements, and VA medical records. The Veteran was also afforded VA examinations and opinions (most recently in May 2016) to assist in determining the etiology of his disability. The May 2016 VA examination, in particular, was adequate because it was performed by a medical professional, was based on a review of the Veteran's record, history, and symptomatology, and included the necessary findings. For these reasons, the Board is satisfied that VA has fulfilled its duties to notify and assist required by the VCAA. I. Legal Criteria- Service Connection Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 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). An alternative method of establishing incurrence or aggravation and a nexus to service is through a demonstration of continuity of symptomatology. 38 C.F.R. § 3.303(b) (2016); Barr v. Nicholson, 21 Vet. App. 303 (2007); Clyburn v. West, 12 Vet. App. 296 (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. Hickson v. West, 12 Vet. App. 247 (1999); 38 C.F.R. § 3.303 (b) (2016). The theory of continuity of symptomatology can be used only in cases involving those disabilities explicitly recognized as chronic. 38 C.F.R. § 3.309 (a) (2016); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, cardiovascular disease is listed among the "chronic diseases" under 38 C.F.R. § 3.309 (a); therefore, 38 C.F.R. § 3.303 (b) applies. Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as cardiovascular disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). For cases involving radiation, service connection can be established in three ways. First, service connection can be awarded on a presumptive basis for diseases specific to veterans exposed to radiation under 38 C.F.R. § 3.309 (d). Second, service connection can be established under 38 C.F.R. § 3.303 (d) with the assistance of the procedural advantages prescribed in 38 C.F.R. § 3.311, if the condition at issue is a radiogenic disease. Third, as stated above, direct service connection can be established under 38 C.F.R. § 3.303 (d) by showing that the disease was incurred during or aggravated by service without regard to the statutory presumptions. See Combee v. Brown, 34 F.3d 1039, 1042-1043 (Fed. Cir. 1994). II. Analysis - Heart Disorder The Veteran contends that his heart disorders, variously diagnosed, are related to his exposure to ionizing radiation in-service. A letter from the Defense Threat Reduction Agency (DTRA) confirms that the Veteran participated in Operation Hardtack I, an atmospheric nuclear test series conducted at the Pacific Proving Ground in 1958. He is therefore presumed to have been exposed to radiation during service. The medical record reflects that the Veteran has been diagnosed with ischemic heart disease, status post myocardial infarction with coronary artery bypass graft, and implantation of pacemaker/defibrillator with congestive heart failure. See February 2012, May 2016, and August 2016 VA Examinations. Notably, none of the aforementioned conditions are presumptive diseases listed under 38 C.F.R. § 3.309(d)(diseases specific to radiation-exposed veterans), or "radiogenic diseases" listed under 38 C.F.R. § 3.311(b)(2)(i). Accordingly, service connection cannot be established pursuant to these provisions. Notwithstanding the foregoing, the Veteran may still establish service connection on a direct basis. See Combee, supra. Notably, the Veteran has never asserted, and the evidence does not otherwise show that he experienced heart-related symptomatology during service. Indeed, service treatment records (STRs) are silent for complaints, treatment, and/or diagnoses of a heart disorder. The separation examination reflects a normal clinical evaluation of the heart and lungs, as well as normal blood pressure and normal x-rays of the chest. The first post-service documentation of heart-related complaints/treatment is not shown until 2002, at which time coronary artery disease was diagnosed. See VA Treatment Records. A notation in these records notes that the Veteran had previously suffered a myocardial infarction in 1987, which was managed with lytics. This is more than 17 years after the Veteran's separation from active duty service. The Board notes that a significant lapse in time between service and the post-service documentation of a disability is a factor that tends to weigh against a finding of service connection. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In short, the preponderance of the above-cited evidence is against a finding that any of the currently diagnosed heart disorders were manifested to a compensable degree within one year of separation from service. See 38 C.F.R. § 3.303(a), 3.309(a). With respect to chronicity of symptomatology (see 38 C.F.R. § 3.303(b)), the Veteran has advanced that he has experienced heart problems since service. During his May 2016 VA examination he stated, "My heart actually hasn't functioned up to par since I got of the Navy in '60." While the Veteran is considered competent to describe his symptoms, the Board finds that there is no evidence of record to show that he has the specialized medical education, training, or experience necessary to provide a competent medical opinion as to the nature and etiology of a heart disorder because diagnosing heart disorders is medically complex in nature. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Moreover, in considering the Veteran's statements as to onset and continuity of symptomatology, in light of the evidence discussed, the Board finds that they do not present an accurate history because these are internally inconsistent and contradictory of other evidence of record. For example, the Veteran has stated that he had a heart attack in 1968 (see August 2016 VA examination report), in the 1970's (see May 2016 VA examination report), and at age 40 (i.e., approximately 1980) (see February 2012). In contrast, the medical record clearly indicates that the Veteran had a heart attack in 1987 and that other heart conditions were subsequently diagnosed decades later. For these reasons, the Veteran's statements as to continuity are not considered to be competent or credible evidence in support of a grant of service connection under 38 C.F.R. § 3.303(b). Significantly, the other evidence of record is against the Veteran's claim for service connection. The Board observes that the Veteran underwent a VA examination in February 2012; however, a nexus opinion was not provided at that time. The Veteran underwent another VA examination in July 2014; however, the Board found that opinion to be inadequate in its March 2016 remand. The Veteran underwent two subsequent VA examinations in May 2016 and August 2016. The May 2016 VA examiner opined that the Veteran's ischemic heart disease status post myocardial infarction with coronary artery bypass graft, and implantation of pacemaker/defibrillator with congestive heart failure was less likely than not caused by or related to military service and/or exposure ionizing radiation in-service. The examiner stated that, in this particular Veterans case, exposure to radiation in Operation Hardtack appeared to represent negligible risk for heart disease. The examiner reasoned that the "lion's share" of risk in this Veteran was represented by his diagnoses of hypertension and hyperlipidemia, noting that according to the CDC, these were 2 of the 3 main risk factors for heart disease ( the third is smoking) (citing to http://www.cdc.gov/HeartDisease/risk_factors.htm). The examiner further noted that the Veteran's August 1960 discharge examination reflected normal blood pressure of 124/70; normal heart and lungs; and normal chest x-rays. The examiner stated, "All evidence points to the Veteran as being a healthy 19 year old man at this time." Moreover, according to medical records, the Veteran did not experience a heart attack until he was at least 40 years old, over 20 years later. The VA examiner also reviewed medical literature presented by the Veteran in support of his contention that ionizing radiation can damage the heart. The examiner reviewed the article in full (www.ped-onc.org/survivors/cardio/radia.html) and noted that it was a lay resource written as a support guide for families of pediatric oncology. The examiner found that the conclusions in the article "may not reasonably be stretched to cover a contention that a Operation Hardtack Veteran with Ischemic Heart Disease with resulting congestive heart failure derived in any way heart damage from nuclear testing," and "despite the Veterans honorable service in very difficult circumstances, there is an absence of credible medical literature to support the contention that exposure to nuclear weapons testing in any way contributed to his heart disease." The Board finds the May 2016 VA examiner's opinion, in particular, to be highly probative as to the issue of nexus because it was rendered after a thorough review of the Veteran's statements and medical history and it was supported by a sound medical rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Significantly, there are no medical opinions of record to the contrary. The Board acknowledges the Veteran's assertions that he developed the currently diagnosed heart disorders due to radiation exposure in active service. However, the Veteran's own assertions are afforded no probative weight in the absence of evidence that he possesses the expertise to render opinions about medical matters. Although the Veteran is competent to testify as to observable symptoms, where the determinative issue involves a question of medical diagnosis or causation, only individuals possessing specialized medical training and knowledge are competent to render such an opinion. There is no evidence that the Veteran has such medical expertise. The Board has also considered the article submitted by the Veteran in support of his claim (see www.ped-onc.org/survivors/cardio/radia.html.). However, this article is not competent and probative medical evidence, as it is generic literature which does not discuss the facts reasonably approximating, and relevant to, the Veteran's claim, to include his aforementioned medical history. There is nothing in this article which provides a reasonable basis to warrant a grant of the claim. In addition, this article was reviewed by the May 2016 VA examiner, and found not to be persuasive. Therefore this article does not provide a sufficient basis to find that there is a causal relationship between the Veteran's currently diagnosed heart disorder and service. In summary, the most competent and probative evidence of record establishes that the Veteran's heart conditions first manifested many years after service and are not related to injury, illness, or other event in active service, to include radiation exposure therein. Again, STRs reveal no complaints, treatment, and/or diagnoses of a heart disorder; the first post-service evidence of a heart disorder is not shown until nearly two decades after separation; and the most competent and probative evidence of record - namely, the May 2016 VA medical opinion - preponderates against a grant of service connection on any basis. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a heart disorder, diagnosed as ischemic heart disease, status post myocardial infarction with coronary artery bypass graft, and implantation of pacemaker/defibrillator with congestive heart failure, is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs