Citation Nr: 1800035 Decision Date: 01/02/18 Archive Date: 01/19/18 DOCKET NO. 12-35 827 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disability, to include as due to service-connected asbestosis. REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from March 1956 to January 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a March 2017 Board decision, the claim was remanded for further evidentiary development. As will be discussed below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The VA Appeals Management Center (AMC) continued the previous denial in an October 2017 supplemental statement of the case (SSOC). The Veteran's VA claims file has been returned to the Board for further appellate proceedings. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. A heart disability, to include coronary artery disease (CAD), did not have its onset in service, did not manifest within the one year presumptive period, and is not otherwise related to the Veteran's active military service. 2. A heart disability is not caused or aggravated by a service-connected disability, to include asbestosis. CONCLUSIONS OF LAW 1. A heart disability was not incurred in or aggravated by the Veteran's military service, and may not be presumed to have been so incurred. 38 U.S.C. §§ 101, 1101, 1112, 1113, 1116, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2017). 2. A heart disability is not proximately due to, or aggravated by, a service-connected disability. 38 U.S.C. §§ 1131, 5017 (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Regarding VA's duty to assist, the RO attempted to obtain the Veteran's service treatment records (STRs) from the National Personnel Records Center (NPRC). Significantly, the RO was notified that these records were destroyed in a fire at that facility. The Board finds that reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate the claim being decided herein, including efforts to obtain service records that were apparently destroyed in the NPRC fire. The Board is cognizant of Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999), wherein the United States Court of Appeals for the Federal Circuit elaborated on VA's responsibility to obtain a veteran's service records. The Board finds, however, that in light of evidence that the Veteran's records were destroyed, there is no reasonable possibility that the missing records may be located or recovered and thus no useful purpose would be served in remanding this matter for more development. Pursuant to the March 2017 Board Remand, the AOJ attempted to obtain the Veteran's records from the Social Security Administration (SSA). Notably, in March 2017, the AOJ was notified that the Veteran's records were unavailable. The AOJ notified of the Veteran in subsequent March 2017 letter. In response to the letter, the Veteran submitted the SSA records, which were in his possession, and asked that VA proceed with the appeal. Therefore, VA has no further duty to him with respect to obtaining these records. See Counts v. Brown, 6 Vet. App. 473, 477 (1994) (VA has no duty to seek to obtain that which does not exist). In addition, upon remand, the Veteran was afforded a VA examination with medical opinion in March 2017. An addendum opinion was also obtained in August 2017. The examination report and medical opinions reflect that the examiner thoroughly reviewed the Veteran's past medical history, and rendered responsive findings. The Board therefore concludes that the March 2017 VA examination report and March 2017 and August 2017 VA medical opinions are sufficient for evaluation purposes. See 38 C.F.R. § 4.2 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more than substantially complied with the Board's remand order"). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA opinion with respect to the pending claim has been met. 38 C.F.R. § 3.159(c)(4). Thus, the Board finds that VA does not have a duty to assist that was unmet. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). II. Analysis In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including cardiovascular disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active service. 38 U.S.C. §§ 1112, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons 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); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a) (2017); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. As has been explained above, the Veteran's service records were destroyed. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the appellant. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). In this matter, the Veteran has asserted that he suffered a heart attack in July 1959, while on active duty, as a result of stress. See, e.g., the Veteran's statement dated July 2009. He has alternately contended that his heart disability is due to his service-connected asbestosis. See the Veteran's claim dated November 2008. On review of the record, the Board finds that the preponderance of the evidence is against the claim on both direct and secondary bases. The Veteran served on active duty from March 1956 to January 1960. As noted above, his STRs were fire-damaged. The Veteran has contended that he developed a heart disability during his military service, which was manifested by excessive nocturnal sweating and fatigue. See, e.g., the Board hearing transcript dated October 2016. Notably, there is no documentation of a heart disability or related symptoms at any point during the Veteran's military service. Nevertheless, the Veteran is competent to report his personal history, and the Board also finds him credible to report his in-service symptoms of excessive sweating and fatigue. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Post-service treatment records dated in January 1980 indicated that the Veteran denied chest pain, shortness of breath, and dyspnea on exertion. A diagnosis of essential hypertension was indicated in November 1992. Treatment records dated in July 2001 noted the Veteran's irregular heart rhythm, and a diagnosis of coronary atherosclerosis was indicated in October 2001. VA treatment records dated in April 2002 noted diagnoses of chronic ischemic heart disease, atrial fibrillation, and CAD status-post four-vessel coronary artery bypass graft surgery. In a July 2009 statement, the Veteran's spouse reported that she and the Veteran were told that the Veteran experienced two heart attacks prior to February 1998. She stated that she felt that one of those heart attacks occurred on their wedding night in June 1959 when the Veteran woke up drenched in sweat. She further reported that she believed the Veteran's second heart attack occurred following a knee surgery dated in approximately 1981 to 1983. The Veteran was afforded a VA examination in March 2017 at which time the examiner noted that, following an abnormal echocardiogram in 1998 with exercise stress test and nuclear stress test, subsequent cardiac catheterization revealed severe coronary artery obstruction. The Veteran then underwent a four vessel coronary artery bypass graft surgery. The examiner confirmed a continuing diagnosis of CAD related to atherosclerosis and atrial fibrillation. The examiner addressed the question of nexus in a separate March 2017 medical opinion. The examiner reviewed the evidence of record, including the Veteran's medical history, and concluded that the claimed heart disability was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner explained that the Veteran had a silent infarction in 1998. She continued, "Veteran has had diabetes for thirteen years prior to the discovery of the infarct[ion] per EKG. [Diabetes mellitus] is known to accelerate atherosclerosis after ten years. It is well-known that myocardial infarction can be silent in diabetics." The examiner observed that the Veteran was diagnosed with new onset diabetes in 1985 and had no evidence of diabetes during active duty. The examiner further noted the Veteran's report that he may have had a heart attack during service when he woke up one day soaking in sweat. The Veteran did not describe having chest pains prior to or after the episodes, no dyspnea on exertion nor syncopal episodes during service or placed in quarters after the episode of diaphoresis. The examiner opined, "[i]f Veteran had ischemic heart disease during service, he would have complaints of angina or other cardiac symptoms in first medical records after release from active duty." The examiner continued, "[t]he first medical records submitted by [the Veteran] were from 1985 to 1997. Veteran was a plumber/construction in 1992 or before that and did strenuous physical activities." As the question of secondary service connection, the examiner stated that "[a]sbestosis does not cause ischemic heart disease or chronic atrial fibrillation. Veteran's atrial fibrillation is due to his ischemic heart disease. He does not have right heart failure as evidenced by the normal echocardiogram in December 2014. Right heart failure can be due to severe respiratory disease." The examiner continued, "[t]he ischemic heart disease is not aggravated by his asbestosis because his recent ejection fraction in 60 percent and has no sign of congestive heart failure." In a VA addendum opinion was obtained in August 2017, following the addition of select SSA and VA treatment records to the claims file. The examiner reviewed the additional evidence and stated that her negative nexus opinion was unchanged. When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The United States Court of Appeals for Veterans Claims (Court) has held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a requirement for private medical opinions. A medical opinion that contains only data and conclusions is not entitled to any weight. Further a review of the claims file cannot compensate for lack of the reasoned analysis required in a medical opinion, which is where most of the probative value of a medical opinion comes from. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In this matter, the evidence of record demonstrates that the Veteran's diagnosed heart disability was not incurred in his active duty service, and is not caused or aggravated by his service-connected asbestosis disability. Crucially, the findings of the March 2017 VA examiner were thoroughly explained and fully supported by the evidence of record. To this end, the Board notes that the March 2017 medical opinion was based on a review of the record, including the statements and evidence submitted by the Veteran, and the examiner explained the reasons for her conclusions based on an accurate characterization of the evidence of record. The Board therefore places significant weight on the findings of the March 2017 VA examiner. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran's active duty service, as well as his service-connected asbestosis disability, outweighs any medical evidence suggestive of a nexus or aggravation. The Board has carefully considered the contentions of the Veteran that the currently diagnosed heart disability was incurred during service and/or aggravated by his service-connected asbestosis. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the Veteran's lay theory regarding the etiology of his heart disability is contradicted by the conclusion of the March 2017 VA examiner who specifically considered the Veteran's lay statements in rendering his negative opinion. The Board finds the specific, reasoned opinion of the trained health care provider who conducted the March 2017 VA opinion to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan, supra. Crucially, however, the Veteran has not contended that he suffered from cardiac symptoms dating from his military service. Moreover, the March 2017 VA examiner specifically considered the lay assertions and inferences contained in the record in rendering the negative nexus opinion. Considering the overall evidence, including the post-service medical evidence, the March 2017 VA medical opinion, and the lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, the preponderance of the evidence is against the Veteran's claim that he suffers from a heart disability, which is related to his military service and/or related to or aggravated by his service-connected asbestosis. Thus, the benefit-of-the-doubt rule is not applicable to the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. ORDER Entitlement to service connection for a heart disability is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs