Citation Nr: 1800831	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  16-11 913	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for a heart disability.


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from January 1962 to January 1964 with subsequent service in the U.S. Army Reserve.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.

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 a December 2014 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).


FINDING OF FACT

A heart disability, to include coronary artery disease, was not present during the Veteran's active service, manifest to a compensable degree within one year of separation, nor does the record contain any indication that any current heart disability is causally related to his active service or any incident therein.


CONCLUSION OF LAW

A heart disability, to include coronary artery disease, was not incurred in active service and may not be presumed to have been incurred in active service.  38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veteran has not 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).

Pursuant to the March 2017 Board Remand, the AOJ obtained the Veteran's outstanding treatment records from New Mexico Heart Institute.  The AOJ also attempted to obtain the Veteran's treatment records from Presbyterian Hospital; however, in August 2017, Presbyterian Hospital notified VA that it would charge a fee to provide the requested records and would not waive said fee.  The Board notes that VA will not pay any fees charged by a custodian to provide records requested.  38 C.F.R. § 3.159(c) (2017).  The Veteran was notified of this impediment to obtaining his records in August 2017; however, he did not submit the outstanding records on his own.  VA therefore has no further duty to him with respect to obtaining these records.

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).

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied.  Gilbert, 1 Vet. App. at 54.

The Veteran seeks service connection for a heart disability.  After carefully considering the record on appeal, the Board finds that the preponderance of the evidence is against the claim.

As a preliminary matter, the Board notes that the Veteran's service treatment and personnel records indicate that he did not serve in Vietnam, Korea, Thailand, or any location known to be associated with the presence of tactical herbicides, nor do these records otherwise contain any indication of tactical herbicide exposure.  He does not contend otherwise.  Thus, service connection for ischemic heart disease on a presumptive basis under 38 C.F.R. §§ 3.307 and 3.309, or on a direct basis due to herbicide exposure is not warranted.  See Stefl v. Nicholson, 21 Vet. App. 120 (2007).

The Board further notes that the Veteran's service treatment records are entirely negative for any complaints, treatment, or diagnosis of a heart disability, to include coronary artery disease.  Consistently, the Veteran has not asserted that his heart disability manifested during his military service.  Under these circumstances, and absent a contrary allegation from the Veteran, the Board concludes that a heart disability was not present during active duty.

The post-service medical evidence is similarly negative for any complaints or findings of any heart disability for years thereafter.  The Veteran's private treatment records indicate that he had coronary artery bypass graft (CABG) surgery in May 1979 and a right coronary percutaneous transluminal coronary angioplasty (PTCA) in July 1991.  See, e.g., the private treatment records dated February 2017 and April 2017.  He had a return of unstable angina leading to a second CABG in December 1992.  Id.  He has been diagnosed with coronary artery disease, ischemic atrial fibrillation, and paroxysmal atrial fibrillation.  Id.

Significantly, there is no evidence to suggest that the Veteran was diagnosed with a heart disability for years after his separation from active duty service.  Moreover, the evidence of record does not demonstrate that he had continuous cardiac symptoms following his January 1964 military separation.

Additionally, no medical professional has suggested that the Veteran suffers from a heart disability that is related to his military service, and neither has the Veteran presented, identified, or even alluded to the existence of any such medical evidence or opinion.  See 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an in-service event, injury, or disease).

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).  The Veteran's claim of entitlement to service connection for a heart disability is therefore denied.
ORDER

Entitlement to service connection for a heart disability is denied.




____________________________________________
K. CONNER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs