Citation Nr: 1753059	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO.  09-32 447	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to service connection for a cardiovascular disability, to include residuals of rheumatic fever.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Poindexter, Associate Counsel 






INTRODUCTION

The appellant is a Veteran who served on active duty from July 1962 to August 1966, and July 1969 to November 1970.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Winston-Salem, North Carolina, Department of Veterans Affairs (VA) Regional Office (RO).  In January 2014 and March 2016, this matter was remanded for further development.  


FINDINGS OF FACT

A cardiovascular disability was not manifested in service or within one year following the Veteran's separation from service; he is not shown to have ischemic heart disease; and any current cardiovascular disability is not shown to be related to his service, to include residuals of rheumatic fever.


CONCLUSION OF LAW

Service connection for cardiovascular disability is not warranted. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.309 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

VA's duty to notify was satisfied by a letter in October 2007.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

The Veteran's service treatment records (STRs) are essentially unavailable.  In such circumstances VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule.  Pruitt v. Derwinski, 2 Vet. App. 83, 85   (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  The Board's analysis of this claim is undertaken with this duty in mind.  Notably, the cited caselaw does not lower the legal standard for proving a claim of service connection but rather increases the Board's obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran.  Russo v. Brown, 9 Vet. App. 46 (1996).  In accordance with the Board's January 2014 and March 2016 remand instructions, the RO requested the Veteran's STRs to include records from the infirmary at the Great Lakes Naval Base, as well as the Great Lakes Naval Hospital Center, where the Veteran reported he was admitted with "probable rheumatic fever".  The National Personnel Records Center (NPRC) advised the RO in June 2016 and April 2017 that a thorough search of records to include archive records revealed no results.  Private and VA medical records have been secured.  The Veteran was afforded a VA examination in September 2014 to determine the etiology of his cardiovascular disability.  As discussed in greater detail below, the opinion offered is adequate for rating purposes.  VA's duty to assist is met. 

Legal Criteria 

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Service connection may be granted for a disease initially 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).

To substantiate a claim of service connection, there must be evidence of:  (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 281 F.3d 1163, 1166-67 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). 

Certain chronic diseases (to include cardiovascular disability) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for cardiovascular disability).  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  A nexus to service may be established by showing continuity of symptomatology following service.  Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013).
Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson.  38 C.F.R. § 3.159 (a)(2).  Lay evidence may be competent evidence to establish incurrence.  See Davidson v. Shinseki, 581 F.3d 1313   (Fed, Cir. 2009).  However, competent medical evidence is necessary where the determinative question is one requiring medical knowledge.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Factual Background 
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 deemed appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims.

The Veteran contends that his current cardiovascular disability is due to rheumatic fever in service.  As noted above, the Veteran's complete STRs are unavailable for review.  STRs submitted by the Veteran are silent for any complaint, treatment, or diagnosis relating to a cardiovascular disability or rheumatic fever.  An August 1962 STR notes that the Veteran was admitted to Great Lakes Naval Hospital with a diagnosis of acute pharyngitis.  A few days later, the diagnosis was changed to bronchopneumonia.   

The earliest postservice clinical record pertaining to the Veteran's cardiovascular disability is a September 2000 report noting a right and left heart catheterization.  December 2000 private treatment records note a "year and a half" history of congestive heart failure, an aortic value replacement and a family history of heart disease. 

An October 2002 private treatment record notes a history of valvular heart disease, including an aortic valve replacement in December 2000, and a pacemaker in April 2002.  An October 2005 clinical record notes that the Veteran has a past medical history of "rheumatic fever status post aortic valve replacement".

In a January 2008 statement, the Veteran reported that he was an unwitting participant in medical experiments at Great Lakes Naval Base in August1962, that were discontinued due to a high rate upper respiratory infections followed by rheumatic fever.  He reported that the physician responsible for conducting the experiments name appears on his paperwork. 

In February 2008, the Veteran submitted an article on medical research on rheumatic fever at Great Lakes Naval Base titled, "The Namru-4 Story 1946-1974". 

In a statement received in February 2008 and subsequent statements, the Veteran reported that in the fall of 1962, he was admitted to the naval hospital for rheumatic fever and his infirmary record stated, "Probable Rheumatic Fever".  [The Board notes that such records are not associated with the file.  The Board's January 2014 and March 2016 remands sought development to secure the Veteran's treatment records; however, such records are unavailable.  (See July 2017 correspondence.)]  
In March 2010, the Veteran submitted medical research titled, "Influenza Antigen Dose and Antibody Response Relationship "which cites medical research conducted at Great Lakes Naval Base. 

In a September 2010 private opinion, the Veteran's physician Dr. R.V. opined that in light of the Veteran's military records, documents on the research done on rheumatic fever at Great Lakes Naval Hospital and the Veteran's current medical records, his rheumatic heart disease and other heart conditions "can, more likely than not be as a result of having had rheumatic fever in 1962".  He noted that there is no definitive diagnostic testing for rheumatic fever and according to the Mayo Clinic; while most people recover fully from rheumatic fever, about half of people develop heart inflammation.  In some cases, one or more of the heart valves may be scarred.  He noted that permanent heart damage due to rheumatic fever is known as rheumatic heart disease and in many cases is not discovered until years later.  Further, Dr. R.V. noted that the physician responsible for conducting research of the causes of rheumatic fever in military recruits, name appears on the Veteran's records and therefore opined that it is more likely than not that the Veteran had rheumatic fever in service and was a participant in medical research.   

On September 2014 VA heart examination, the diagnoses were "status post aortic valve replacement due to aortic insufficiency related to myxomatous degeneration", pacemaker implantation for heart block, and "status post ablation for treatment of atrial fibrillation."  The examiner opined that none of the Veteran's heart conditions qualify within the generally accepted medical definition of ischemic heart disease.  His heart conditions require continuous medication including Coreg and Lisinopril.  The examiner noted the Veteran's heart condition resulted in congestive heart failure that was not chronic, with no episodes of acute congestive heart failure in the past year.  An atrioventricular block cardiac arrhythmia was noted as well as an aortic heart valve condition.  Diagnostic testing showed no evidence of cardiac hypertrophy; there was evidence of cardiac dilation.  The examiner opined that the Veteran's heart disease is not likely related to service to include rheumatic fever therein. The examiner noted that a review the Veteran's August 1962 STR shows a diagnosis of "pharyngitis, acute" and a revised diagnosis of "bronchopneumonia.  The examiner noted the Veteran's report of being a participant in medical research on rheumatic fever, his report of seeing "probable rheumatic fever" on his infirmary records and the articles submitted by the Veteran.  He opined that if the Veteran saw "probable rheumatic fever" on his infirmary record, it was likely not the final diagnosis.  He furthered opined that regardless of the precise diagnosis for the Veteran's August 1962 illness and the Veteran's claimed involvement in medical experiments on rheumatic fever, it does not impact the intraoperative findings of the December 2000 aortic valve replacement.  He noted that the December 2000 surgeon reported that the annulus was "significantly dilated, the sinuses of Valsalva were also dilated," and the leaflets were normal.  The corresponding report noted, "fibrosis and myxomatous degeneration".  The examiner opined that this description is not consistent with rheumatic valvular disease but more consistent with "aortic valve failure due to dilatation of the .aortic valve annulus secondary to aortic root dilatation" which he noted to be a common cause for aortic regurgitation.  Citing to medical research, the examiner noted that in rheumatic heart disease, the mitral valve is involved in nearly all cases.  

Analysis 

It is not in dispute that the Veteran now has a cardiovascular disability.  Private and VA treatment records show diagnoses of vascular heart disease and an aortic value replacement.  The critical question remaining is whether there is competent evidence of a nexus between his service, to include residuals of rheumatic fever, and his cardiovascular disability.  The evidence does not show that a cardiovascular disability was manifested in service or in the first postservice year, and the Veteran does not allege otherwise.  Consequently, service connection for a cardiovascular disability on the basis that such disability became manifest in service and persisted (or on a presumptive basis as a chronic disease under 38 U.S.C.A. § 1112 is not warranted. 

What remains for consideration is whether or not the Veteran's cardiovascular disability is otherwise shown to be related to the Veteran's service to include residuals of rheumatic fever.  The question of whether or not there is such a nexus is a medical question beyond the scope of common knowledge or capability of resolution by lay observation.  It requires medical expertise.  See Jandreau v. Nicholson, 492 F.3rd 1372, 1377 (Fed. Cir 2007).  

The record includes both medical evidence that tends to support the Veteran's claim and medical evidence that is against his claim.  The credibility and weight to be attached to medical opinions is within the providence of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71(1993).  Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence.  Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994).

Supporting the Veteran's claim is a September 2010 letter/statement by the Veteran's private physician, who is acknowledged to be competent to provide medical opinions regarding the etiology of a cardiovascular disability and who opined that the Veteran's rheumatic heart disease and other heart conditions "can, more likely than not be as a result of having had rheumatic fever in 1962".  He indicated that there is no definitive diagnostic test for rheumatic fever and while most people recover fully from rheumatic fever, about half of people develop heart inflammation and can develop permeant heart damage due to rheumatic fever, known as rheumatic heart diseases.  However, the nexus opinion offered is stated in speculative terms "can", more likely than not" and does not account for the factors that weigh against the Veteran's claim, including (as cited by the VA opinion against the Veteran's claim) that the December 2000 surgeon aortic valve replacement report note findings that are not consistent with rheumatic fever but more consistent with aortic valve failure due to dilatation of the aortic valve annulus, a common cause of aortic regurgitation.  Accordingly, that opinion likewise cannot be accorded substantial probative value.

Against the Veteran's claim is the opinion based on review of the record offered by the September 2014 VA physician.  The opinion reflects familiarity with the entire record, and the opinion against the Veteran's claim is accompanied by rationale that cites to supporting factual data and addresses the evidence submitted in support of the veteran's claim (explaining why it is not probative).  The examiner explained that even if the Veteran was diagnosed with rheumatic fever in August 1962, and was involved in medical research, his December 2000 aortic valve intraoperative findings are not consistent with rheumatic valvular disease.  The examiner also identified an alternative (nonservice-related) etiology for the heart disease considered more likely.  Specifically, the provider indicated that the Veteran's heart disease is more consistent with "aortic valve failure due to dilatation of the .aortic valve annulus secondary to aortic root dilatation".  The VA examiner also cited to medical studies, noting that in cases involving rheumatic heart disease, the mitral valve is affected in nearly all cases, not the aortic.  The Board finds this opinion more probative and persuasive.  
While the Veteran is competent to report that he saw a diagnosis of "probable rheumatic fever" and was a participant in medical experiences on rheumatic fever, and the Board finds him credible; the Veteran is a layperson.  Therefore, his own opinion is not probative evidence in the matter of a nexus between the heart disease and the alleged rheumatic fever in service.  The supporting medical evidence he submitted is the case of the medical literature is not material and not probative, as explained by the VA physician.  In light of the foregoing, the Board finds that the preponderance of the evidence is against this claim.  Accordingly, the appeal in the matter must be denied.


ORDER

Service connection for cardiovascular disability to include residuals of rheumatic fever is denied. 





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

Department of Veterans Affairs