Citation Nr: 1806106 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 15-44 253 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for congestive heart failure with atrial fibrillation. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which, in relevant part, denied entitlement to service connection for congestive heart failure. The Veteran submitted a notice of disagreement in June 2015. A statement of the case was issued in November 2015. The Veteran perfected a timely substantive appeal via VA Form 9 in November 2015. In October 2017, the Veteran testified during a hearing before the undersigned Veterans Law Judge by videoconference; a transcript of that hearing is of record. This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. 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 Congestive heart failure with atrial fibrillation is not shown to be causally or etiologically related to any disease, injury, or incident during service. CONCLUSION OF LAW The criteria establishing entitlement to service connection for a heart condition are not met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). VCAA compliant notice was provided to the Veteran via a September 2014 letter, sent prior to the May 2015 rating decision on appeal. The Board notes that neither the Veteran nor his representative has alleged or demonstrated any prejudice with regard to the content or timing of VA's notice. See Shinseki v. Sanders, 129 U.S. 1696 (2009). The Federal Court of Appeals has held that "absent extraordinary circumstances...it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...." See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the relevant records for the claim adjudicated herein. The pertinent evidence associated with the claim consists of service treatment records (STRs), post-service VA and private treatment records, VA examination reports, and the Veteran's statements. The Board recognizes that the Veteran identified private treatment records from a provider (Dr. D.) who was non-responsive to multiple requests to provide the records to VA. He also identified treatment records from a provider in Mexico, but stated that the records were unavailable. The Veteran was notified that while VA has a duty to make reasonable efforts to assist in obtaining this evidence, ultimately it is the claimant's responsibility to submit relevant evidence in support of a claim. VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Board therefore finds that VA's duty to assist in obtaining the relevant records is met. In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The Board has reviewed all of the evidence in the Veteran's claims file, 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 every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Legal Criteria Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465, 469 (1994); Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis 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 (Fed. Cir. 2007). B. Analysis The Veteran contends that service connection is warranted for a heart condition, claimed as an irregular heartbeat. After thorough review of the evidence, the Board concludes that entitlement to service connection for this condition cannot be granted. As an initial matter, the evidence establishes that the Veteran has a current diagnosis of congestive heart failure with atrial fibrillation, as documented on the January 2015 VA examination. Thus, the current diagnosis element is met. There is no dispute over the issue of an in-service incurrence. A January 1996 Report of Medical Examination conducted in conjunction with the Veteran's separation from service noted a heart murmur. The examiner reports that a chest x-ray returned negative results and EKG testing was normal. No cardiac symptoms were detected. The examiner noted a defect described as a functional heart murmur. Thus, the inquiry turns to whether there is a nexus between this in-service diagnosis and the Veteran's current heart condition. In this regard, the Board finds that the Veteran is not competent as to the etiology of his heart condition. He is competent to attest to factual matters of which he has first-hand knowledge, such as experiencing symptoms during and after service. See Layno, 6 Vet. App. at 469; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, he is not competent to opine on the complex medical question of etiology of a condition such as congestive heart failure. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau, 492 F.3d at 1377. The question of causation of congestive heart failure involves medical subjects concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. In a case such as this, where a heart condition has multiple potential etiologies, lay testimony is insufficient to establish causation. For that reason, the Board assigns no probative value to the Veteran's assertions regarding etiology. Instead, the Board finds the objective medical evidence, including the January 2015 VA examination report, to be highly probative as to the issue of a nexus. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion. Here, the Veteran underwent VA examination in conjunction with his claim in January 2015. After review of the claims file and physical examination of the Veteran, the examiner concluded that it was less likely than not that the current condition was related to the condition noted in service. The examiner's supporting rationale indicated that STRs noted a heart murmur that was considered functional with a normal EKG and rhythm upon separation. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for the medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In this case, the Board assigns significant probative value to the January 2015 VA opinion. The examiner demonstrated that he reviewed the file, considered the Veteran's contentions, and reached a conclusion supported by a detailed basis. The Board notes that subsequent to the January 2015 VA examination, the Veteran alleged that he received treatment for his heart condition after service. In his November 2015 VA Form 9, he described seeking treatment in Mexico as there were no VA hospitals or clinics in his area. He stated that due to the current situation with the drug cartels in Mexico, he could no longer receive medical treatment or obtain the records for fear of being assaulted or abducted for money. During the hearing before the Board, the Veteran relayed further details about the treatment in Mexico. He stated that he continued to be diagnosed with a heart murmur and fibrillation during that treatment. In weighing credibility, the Board may consider interest bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desires for monetary gain, and demeanor of the witness. see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In this case, the Board finds that the Veteran's statements concerning treatment in Mexico for a heart condition lack credibility as they are inconsistent with other evidence of record. Firstly, the Board has reviewed the extensive treatment records from multiple providers, which contain no mention of treatment in Mexico. Indeed, private treatment records from Dr. R. in August 2008 contain the Veteran's denial of travel outside the United States. In this regard, statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care." Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I. 2003); see Fed. R. Evid. 803(4) and accompanying Notes (noting statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth); Rucker, 10 Vet. App. at 73 (providing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate). Additionally, in his June 2015 notice of disagreement, the Veteran acknowledged a lack of prior treatment. He wrote, "I may not have seen a doctor or been treated/diagnosed for this condition, but that does not prove it is not connected to my service or aggravated by my service." It was only upon filing his VA Form 9 that the Veteran first alleged treatment for his heart in the years following his service. Thus, as the Veteran's current statements regarding receiving treatment for his heart condition are inconsistent with prior declarations and statements made in private treatment records for the purposes of obtaining medical care, the Board finds that his lay statements concerning continuity of symptoms are not credible. Consequently, the Board assigns little probative value to them. Notably, there is no medical evidence of record which provides a positive nexus opinion connecting the condition on appeal to the Veteran's service. Absent countervailing medical evidence, the Board itself is prohibited from exercising its own independent judgment in the Veteran's favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board may not exercise its own independent judgment to resolve medical questions). Accordingly, the most probative evidence of record does not reflect a nexus between the Veteran's service and his heart condition. Based upon the evidence of record, the Board concludes that entitlement to service connection for a heart condition cannot be granted. The competent, probative evidence does not reflect a nexus between the Veteran's service and his currently diagnosed congestive heart failure with atrial fibrillation. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. ORDER Entitlement to service connection for congestive heart failure with atrial fibrillation is denied. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs