Citation Nr: 1801901	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  11-13 966	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for residuals of angioplasty.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. Setter, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1975 to February 1978, with subsequent periods of reserve service to January 2015.    

This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board remanded the issues on appeal for additional development in January 2015.  The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).

This appeal was originally certified to the Board with two additional issues:  entitlement to service connection for hypertension, and entitlement to service connection for a back condition.  However, the RO granted entitlement to service connection for hypertension in a January 2017 rating decision, and entitlement to service connection for a back condition, now characterized as degenerative disc disease, lumbar spine, in an October 2016 rating decision.  As such, the issues are no longer in appellate status before the Board.  Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997).


FINDING OF FACT

A heart condition was not manifest during active service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease.


CONCLUSION OF LAW

The criteria for service connection for a heart condition are not met.  38 U.S.C. § 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

II. Service Connection for a Heart Disability

A. Legal Criteria for Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, a Veteran must show:  "(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-the so-called "nexus" requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).  

Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Where a veteran served ninety days or more of active service, and cardiovascular-renal disease becomes manifest to a degree of ten 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.  While the disease need not be diagnosed within the presumptive 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. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a).

Service connection for cardiovascular disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id.

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

After the evidence is assembled, it is the Board's responsibility to evaluate the entire record.  See 38 U.S.C. § 7104(a) (West 2012).  When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant.  See 38 U.S.C. § 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.3 (2017). 

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  See Alemany v. Brown, 9 Vet App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

B. Evidence and Analysis

The Veteran is claiming entitlement to service connection for residuals of angioplasty.

The Veteran's service treatment records for his period of active duty, from February 1975 to February 1978, are silent for any mention of any heart or heart-related issue or condition.  The reports of medical history included in the January 1975 entrance examination and the February 1978 separation examination do not mention any heart or cardiac-related issues.

The Veteran received a VA examination in September 2016 for his claimed heart condition.  Medical records reviewed by the examiner indicate the Veteran had heart surgery, to include an angioplasty, in August 1993, along with a diagnosis of coronary artery disease.  In December 2007 and into 2008, the Veteran sought emergency room treatment for chest pains, and remained monitored for his coronary heart disease per the latest records present in the claims file.  Thus, the requirement for a current disability is met.

While the Veteran had no evidence of any heart-related issues or conditions during his initial period of active service, as noted above, he continued his military service in the reserve component, with periods of active duty service for training (ACDUTRA) and inactive duty service for training (INACDUTRA).  As noted above, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  "Active military, naval, and air service" includes active duty, any period of active duty for training during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training.. 38 C.F.R. § 3.6(a).  Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See 38 U.S.C. § 101; Venturella v. Gober, 10 Vet. App. 340 (1997).

Here, the Veteran had service on active duty from February 1975 to February 1978, and no evidence of any heart condition is found during this period.  The service records obtained in response to the Board's remand of January 2015 indicate the Veteran's reserve service commenced in July 1978, with periodic service of varying characterizations through January 2015, when the Veteran retired from reserve military service.  However, the weight of the evidence demonstrates that the current heart condition was incurred in or aggravated during any period of service, in accordance with 38 C.F.R. § 3.6.  Thus, the Veteran's claim does not meet the second prong of service connection, the necessity of an in-service incident, disease, or injury.

Upon review of the evidence, the Board concludes that entitlement to direct service connection is not warranted for residuals of angioplasty or any related heart condition.  While the September 2016 VA examination established the presence of a current disability, the Veteran's initial manifestation of cardiovascular disease occurred in August 1993, well after the Veteran's February 1978 separation from active service and outside of his reserve service periods of ACDUTRA and INACDUTRA.  There is no medical evidence available demonstrating that the Veteran's diagnosed heart disease from 1993 was aggravated during subsequent periods of service that are qualifying for the active service requirement of 38 C.F.R. § 3.6.  

Turning to the presumption in favor of chronic diseases and continuity of symptomatology, the Veteran has been diagnosed with a cardiovascular disease, which is a specifically listed chronic disease for VA purposes. 38 C.F.R. § 3.309(a).

However, the medical evidence does not show, and the Veteran has not alleged, that his cardiovascular disease manifested in service or within one year of his separation from active service. The medical records indicate that the cardiovascular disease had its onset in the 1993. The February 1978 separation examination is silent for diagnoses or symptoms of cardiovascular disease, as are the Veteran's service treatment records generally. Thus, the preponderance of the evidence is against a finding that the Veteran's cardiovascular disease manifested to a sufficient degree either in service or within one year of his separation. As such, service connection based on the presumption in favor of chronic diseases or continuity of symptomatology for a heart condition is not warranted in this case. Walker, 708 F.3d 1331; 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a).

For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for residuals of angioplasty on a direct or presumptive basis, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for residuals of angioplasty is denied.




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs