Citation Nr: 1751007 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 16-38 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for ischemic heart disease to include as a result of scarlet fever. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served on active duty from January1946 to November 1947. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia. VA jurisdiction is transferred to Detroit, Michigan. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The weight of evidence is against a finding that the Veteran's hearing condition either began within a year of separation from service or was otherwise caused by his military service. CONCLUSION OF LAW The criteria for service connection for a heart condition have not been met. 38 U.S.C.A. §§ 1101, 1131, 1110, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was afforded the opportunity to testify before the Board. He submitted statements that he was unable to appear for any scheduled Board hearings, because he could not travel to them. Subsequently, the Veteran's representative submitted a Written Brief Presentation on the Veteran's behalf dated October 2017. Therefore, the Board finds that the Veteran declined the opportunity to testify before the Board, and his hearing request is considered to have been withdrawn. The Veteran was also provided with a VA examination and neither the Veteran nor his representative has objected to its adequacy. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. II. Service Connection The Veteran is seeking service connection for ischemic heart disease, which he believes it the result of delayed treatment for the scarlet fever which he contracted in service. The Veteran has also asserted that he has experienced chest pains since 1947 when he was discharged from service. 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). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran's cardiovascular disease is considered to be a chronic disease. Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from 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, 1137; 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. The Veteran's April 2014 claim was denied in a February 2015 rating decision. As the RO found that the evidence of record did not support a link between the Veteran's current ischemic heart disease and a in service occurrence, including scarlet fever. The Veteran's service treatment records are silent for reports of, or treatment for, any heart conditions, but the STRs do confirm that he was diagnosed with and hospitalized for scarlet fever in February 1946 while on active duty. Private and VA treatment records indicate that the Veteran was diagnosed with coronary artery disease. The earliest diagnosis is for the Veteran's myocardial infarction heart condition is 1970, which is more than twenty years after the Veteran was discharged from service. The Veteran submitted a cardiac questionnaire from a private physician in June 2015. The notes reveal that the Veteran first reported chest pain in 1984. The private physician diagnosed the Veteran with ischemic heart disease. Furthermore, the Veteran was afforded a VA examination on February 2015. The examiner diagnosed the Veteran with myocardial infarction, coronary artery disease, valvular heart disease, rheumatic heart disease and coronary artery bypass graft (ischemic heart disease). The examiner was asked if the Veteran's ischemic heart disease is at least as likely as not proximately due to or the result of scarlet fever." The examiner opined that the condition claimed is less likely than not (less than 50% probability) proximately due to or the result of the Veteran's in-service scarlet fever condition. She found that the Veteran's ischemic heart disease is not caused by or a result of scarlet fever. The examiner explained that Scarlet fever is a diffuse erythematous eruption that generally occurs in association with pharyngitis. Development of the scarlet fever rash requires prior exposure to S. pyogenes and occurs as a results of delayed-type skin reactivity to pyrogenic exotoxin (erythrogenic toxin, usually types A,B, or C) produced by the organism. The examiner supported her opinion by referencing the following medical literature. Michael Pichichero M.D., Complications of Streptococcal Tonsillopharyngitis (2015). The examiner also noted that the Veteran has significant risk factor in the etiological development of ischemic heart disease to include age, gender, and tobacco use. She further reported that the Veteran was not medically discharged from the military and his November 1947 separation physical evidences a normal exam. The Board gives this opinion significant weight and probative value. The VA examiner gave full consideration of all pertinent and available medical facts. She examined and interviewed the Veteran and provided rationale and cited medical literature to support her findings. The Veteran also submitted a February 2017 private medical opinion. The private medical professional stated that although possible, he opines that the association between the Veteran's in-service scarlet fever and current heart condition would be conjecture because he would be unable to support that position. The Board also notes that the Veteran submitted a statement in April 2017 from a VA doctor. The doctor wrote that the Veteran had contracted scarlet fever in service and had been diagnosed over the years with Mitral valve disease, Tricuspid valve disease, Congestive Heart Failure, and Atrial Fibrillation. The doctor noted that Rheumatic Heart Diseases secondary to Scarlet Fever can and does create secondary heart diseases in many patients. These long term sequelae include conditions such as the ones mentioned above. The Veteran firmly believes that delayed treatment of Scarlet fever while in service caused these conditions to manifest over time. However, upon careful examination of the opinion, the medical professional did not provide supporting rationale or cite to medical literature to support the opinion. Of note, the medical professional stated that Scarlet fever could cause secondary heart problems. However, However, "could be" in the context of a medical opinion is the same as "could not be" and therefore cannot provide the requisite nexus. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Of note, the doctor did not opine that it was at least as likely as not (50 percent or greater) that the scarlet fever actually did cause any secondary conditions. Of note, the doctor stated that the Veteran was of the opinion that the two were connected, but the doctor did not actually suggest that this was his belief. Additionally, the medical professional failed to address the Veteran's known causative factors for heart conditions, such as smoking and age. Therefore, the Board does not afford this opinion great weight. The weight of the evidence indicates that the Veteran's heart conditions are not related to a period of service. The medical evidence of record clearly indicates that the Veteran was diagnosed with heart conditions many years after discharge. Credible evidence, including service treatment records, confirms that the Veteran was hospitalized in service on a single occasion for scarlet fever. However, the evidence does not support a medical nexus between the in-service incurrence and any of the claimed conditions. The Veteran was provided with a February 2017 VA examination at which the VA examiner indicated that the Veteran's ischemic heart disease was less likely than not related to a period of service. The Board finds this opinion credible and affords it great weight, because it was based on sufficient facts and data applied to reliable principles and methods. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner supported her opinion with medical studies and explained why, namely that the Veteran had numerous other risk factors for heart disease, she reached the conclusion she did. Ultimately, the VA examiner's opinion is uncontradicted. The Veteran has submitted several opinions in an effort to support his claim. Unfortunately, neither provide sufficient rationales or conclusions to make it at least as likely as not (50 percent or greater) that his heart disease is the result of his Scarlet fever in service. For example, the Veteran submitted a February 2017 private opinion that found that although the link is possible, the association between the Veteran's in-service scarlet fever and current valve disease would be conjecture. That is, the private doctor did not actually suggest that it was at least as likely as not (50 percent or greater) that the heart disease was caused by the scarlet fever, only that it was possible. Additionally, the Board notes that the Veteran's ischemic heart disease did not manifested within one year of separation from service. The Veteran's initial diagnosis for ischemic heart disease was in 1970, which is more than twenty years after his discharge from service in 1947. Consideration has been given to the Veteran's assertions that his ischemic heart disease was due to his active service, to include as a result of scarlet fever. The Veteran is, clearly competent to report symptoms of heart conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, determining the etiology of ischemic heart disease is not readily amenable to mere lay testimony. Rather, such would require medical training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's representative argues that the Board should be afforded the full benefit of reasonable doubt See Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990) However, the weight of the probative evidence of record fails to demonstrate a medical link between the Veteran's ischemic heart disease and a period of active service, and there is no record of a diagnosis within one year of separation. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As such, the benefit-of-the-doubt rule is not applicable in this case. Accordingly, the Board finds that the weight of the evidence is against a claim for direct, secondary, or presumptive service connection for ischemic heart disease and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for ischemic heart disease is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs