Citation Nr: 18155353 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 09-15 265A DATE: December 4, 2018 ORDER Service connection for a heart disorder is denied. FINDING OF FACT A heart disorder is not shown to be causally or etiologically related to any disease, injury, or incident during active service, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA), and did not manifest within one year of the Veteran’s active duty service discharge. CONCLUSION OF LAW The criteria for service connection for a heart disorder have not been met. 38 U.S.C. §§ 101(24), 1101, 1101, 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.1(d), 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 1976 to June 1979 with subsequent periods of ACDUTRA and INACDUTRA with the Army Reserve from 1980 to 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2007 by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2011, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board remanded the instant matter in June 2011 and December 2013. As relevant, in May 2015, the Board denied the issue of entitlement to service connection for a heart disorder. The Veteran appealed the Board’s May 2015 decision as to such issue to the United States Court of Appeals for Veterans Claims (Court) which, in October 2016, issued a Memorandum Decision vacating and remanding the matter to the Board for further consideration. Subsequently, in June 2017, the Board remanded the Veteran’s claim for additional development it now returns for further appellate review. As noted in the June 2017 Board remand, a December 2015 rating decision declined to reopen a previously denied claim for service connection for hypertension, and denied service connection for tinnitus, acid reflux, and erectile dysfunction. Thereafter, the Veteran entered a notice of disagreement as to the denial of such claims in December 2015. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Local System, the claims are still being developed by the AOJ. As a result, the Board declines jurisdiction over these issues until such time as an appeal to the Board is perfected. Entitlement to service connection for a heart disorder. A Veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other “than dishonorable.” 38 C.F.R. § 3.1(d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by members of the National Guard of any State or the Reserve. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full-time duty performed by a member of the Reserve or the National of any State. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, to a degree of 10 percent within one year, from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, however, the advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson v. Brown, 7 Vet. App. at 469-70, for the proposition that, “if a claim relates to a period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim”); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is seeking service connection for a heart disorder. Specifically, in written correspondences submitted throughout the appeal and at the February 2011 Board hearing, the Veteran and his spouse indicated that he had experienced continuous chest pain since his military service. The Veteran’s service treatment records (STRs) reveal that he presented to sick call on several occasions in June 1976 with subjective complaints of chest pain. These symptoms were exacerbated by deep breathing or by performing physical training. The impression was pleuritic chest pain vs. chest wall. He was also diagnosed as having muscular pain. Subsequent episodes of chest pain in January, July, and November 1977 were attributed to gastritis or viral syndrome. Examination of the Veteran’s chest and heart, along with electrocardiogram (EKG) testing, was normal at that time. The Veteran returned to a VA medical facility in October 1987 with subjective complaints of chest pain since that morning. A chest x-ray was normal. The impression was alteration of cardiovascular system due to pain. Clinical evaluations and physical examinations performed in May 1979, January 1984, and October 1987 were normal. It was noted, however, in January 1990 and November 1991, that the Veteran had hypertension, but no other cardiovascular abnormalities were found at that time. An EKG performed at a VA medical facility in May 1993 was described as abnormal and it was noted that the results showed left ventricle hypertrophy (voltage criteria) and ST elevation. A notation on the examination report further stated, “consider early repol pericarditis or injury.” The Veteran was subsequently diagnosed as having unstable angina and coronary artery disease (CAD) in November 1999 following a heart catheterization procedure. See December 1999 and May 2005 VA treatment notes and diagnostic reports. Other pertinent VA treatment records diagnosed ischemia and suggested that the Veteran had a past myocardial infarction. See VA treatment records and diagnostic reports dated August 2001, July 2003, and May 2005. Additionally, a January 2008 functional assessment examination from the Social Security Administration (SSA) notes diagnoses of the following heart diseases: “A. Hypertension, atherosclerosis. B. Ischemic and dilated cardiomyopathy, coronary sclerosis, possible myocardial fibrosis with aneurismal changes. C. Sinus rhythm, abnormal electrocardiogram, post-operative PTCA with stent placement in 2003 and 2006, typical anginal syndrome. D. Class III C.” Subsequent VA treatment records reflect ongoing treatment for a diagnosis of CAD. In June 2011, the Board remanded the appeal to afford the Veteran a VA examination to address the nature and etiology of his current heart disorders. The requested examination was conducted in April 2012. Such examination report noted diagnoses of coronary artery disease and hypertensive heart disease, but did not provide the requested opinion. As such, an August 2012 addendum opinion was obtained. In December 2013, the Board concluded that the April/August 2012 VA examiner failed to opine whether the Veteran’s current heart disorders were related to his “in-service treatment for chest pain and related complaints.” Furthermore, the Board found that the examiner did not “consider the Veteran’s complaints of continuity of symptoms since discharge from service.” Therefore, the Board remanded the appeal to obtain an additional addendum opinion regarding the etiology of the Veteran’s current heart disorders. The requested addendum opinion was obtained in August 2014. In May 2015, the Board determined that the August 2012 and August 2014 opinions collectively were adequate to decide the Veteran’s claim and, based on the opinion rendered therein, found that the Veteran’s heart disorder was not shown to be causally or etiologically related to any disease, injury, or incident during active service, ACDUTRA, or INACDUTRA, and did not manifest within one year of the Veteran’s discharge from active duty service. The Veteran appealed the Board’s May 2015 decision to the Court which, in an October 2016 Memorandum Decision, vacated the denial and remanded the matter to the Board for further consideration. Specifically, the Court found that the Board erred by relying on the August 2012 and August 2014 VA medical opinions. In this regard, the Court determined that the August 2012 opinion did not address whether the Veteran’s current heart disorders were related to his in-service treatment for chest pain and related complaints, nor considered his complaints of continuity of symptoms since discharge from service. Here, the Court reported that service treatment records show that the Veteran complained of chest pain in June 1976, November 1976, and January 1977. Furthermore, the Court reported that post-service medical records revealed chest pain complaints by the Veteran in October 1987, and a November 1999 VA discharge summary following a heart catheterization procedure contains admission diagnoses of unstable angina and coronary artery disease. The Court also reported that, during his February 2011 Board hearing, the Veteran testified that he had experienced continuous chest pain since service. Additionally, the Court noted that, prior to obtaining the August 2014 opinion, the Board did not consider the medical evidence of record sufficient to decide the Veteran’s claim. The Court further determined that the August 2014 opinion was conclusory and the examiner offered no explanation for the basis for his opinion. Here, the Court noted that the August 2014 VA examiner opined that the Veteran’s heart disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of such opinion, the examiner stated that the Veteran’s “chest pain complaints were evaluated while in the military and not found to be heart[-] related. Even though [he] reports chest pain complaints after discharge[,] it’s not possible to know the cause. His records do show longstanding [hypertension] poorly contro[l]led, diagnosed after military service. [Coronary artery disease] diagnosed after service. Most likely cause of [coronary artery disease] is his [hypertension], which does not appear to be service connectable.” The Court found that the examiner offered no explanation as to why it was not possible to ascertain the cause of the Veteran’s post-service chest pains, nor did he explain why the Veteran’s nonservice-connected hypertension is the likely cause of his current heart condition. Additionally, the Court further found that the examiner failed to address in any meaningful way the Veteran’s in-service complaints of chest pains or his assertions of continuity of symptoms since service. Consequently, the Court determined that there had not been substantial compliance with the Board’s remand directives and remanded the matter in order for the Veteran to be afforded a new medical examination that considers and accounts for the in-service evidence of chest pain, the Veteran’s assertions of continuity of symptoms since service, the November 1999 notation of angina prior to his heart catheterization procedure, and all other relevant medical or lay evidence, and included clear conclusions supported by adequate rationale. Hence, the August 2012 and August 2014 opinions are afforded no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). Accordingly, in June 2017, the Board remanded the Veteran’s claim in order to afford him another VA examination that identified all heart disorders found to be present and addressed whether such was related to his period of active service and/or Reserve service. Thereafter, the Veteran underwent a VA examination in July 2018. At such time, the examiner noted diagnoses of CAD and cardiomyopathy, and opined that the Veteran’s heart disorder was less likely than not secondary to his military service. In support of his opinion, he noted that a review of the Veteran’s STRs documented non-cardiac chest pain, and he did not develop known CAD until many years following his service. The examiner further reported that, if the Veteran had CAD while in service, it would have been manifest many years earlier. In an August 2018 addendum opinion, he further opined that the Veteran’s heart disorder was less likely than not secondary to chest pain while in military service. As rationale for the opinion, the examiner reported that, per a review of the Veteran’s STRs, his chest pains documented while in service were noted to be atypical or musculoskeletal in nature, and there was no documentation to suggest a cardiac cause. He further reported that the Veteran was not noted to have documented CAD until almost 20 years after his discharge, i.e., in 1998. Here, the examiner explained that, if the Veteran had CAD while in service, he would have either died from a heart attack or been diagnosed with CAD well prior to 1998. He further indicated that there was many non-cardiac causes of chest pain and it was extremely unlikely that the Veteran would have had significant CAD for almost 20 years without being diagnosed. The examiner concluded that, although the Veteran complained of chronic chest pains, it was highly unlikely that such pains were cardiac in nature, and CAD in a patient younger than 30 years of age was exceedingly rare. The Board has carefully reconsidered the facts of this case, including the concerns raised in the October 2016 Memorandum Decision; however, finds that the appeal must again be denied because the preponderance of the evidence weighs against the Veteran’s claim. In this regard, the Board places great probative weight on the July/August 2018 VA examiner’s opinions that the Veteran’s heart disorder was not related to his military service, to specifically include his reports of chest pain during and since service. Specifically, such opinions focused on the complex medical questions in the case, including the concerns raised in the Memorandum Decision. Here, as noted in the Memorandum Decision and June 2017 remand, the July/August 2018 VA examiner took into consideration the Veteran’s in-service treatment for chest pain and related complaints in June 1976, November 1976, and January 1977. Additionally, such examiner adequately analyzed the likely etiology of the Veteran’s present heart disorders. Furthermore, such opinions considered all of the pertinent evidence of record, to include the Veteran’s post-service treatment records and lay statements, and provided a detailed rationale for the conclusions reached, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez, supra; Stefl, supra. There is no contrary medical opinion of record. The Board acknowledges the Veteran’s representative’s argument in his September 2018 Remarks to Supplemental Statement of the Case that the July 2018 and August 2018 VA opinions are inadequate for adjudication purposes for several reasons. However, his contentions essentially amount to disagreement in the way the July/August 2018 VA examiner analyzed the evidence in reaching his conclusions, and are not tantamount to an allegation that the opinions themselves were insufficient. A VA examiner is presumed to have properly discharged his or her duties as a health professional (presumption of regularity) in a review of the record, in interviewing the Veteran, and supporting his or her opinion with medical analysis applied to the significant facts of the case. See Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed Cir. 2009) (applying the presumption of regularity to VA medical examiners in the discharge of their regular duties). The presumption of regularity is rebuttable by clear evidence to the contrary. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). In this regard, the Veteran’s representative has not pointed to any actual error, deficiency, incorrect application of medical principles, or any other specific failing of the July/August 2018 VA examiner in this case. Here, as noted above, the July/August 2018 VA examiner indicated that he reviewed the Veteran’s claims file and supported his opinion with the relevant facts of the case. Furthermore, contrary to the Veteran’s representative’s assertion, such examiner did not resort to mere speculation in rendering his opinions and took into account the Veteran’s relevant medical history, to include his lay statements and objective medical findings in his STRs and post-service treatment records, the Veteran’s personal characteristics, to include his age, and accepted medical principles. Furthermore, while the Veteran’s representative argues that the VA examiner’s estimation of the Veteran’s METs related to his heart disorder was speculative, such inquiry is irrelevant to the question in this case, i.e., the etiology of the Veteran’s heart disorder. Accordingly, the Board finds the Veteran’s representative’s arguments as to the alleged inadequacy of the VA opinions to be without merit. The Board notes that the Veteran and his spouse have contended that his current heart disorder had its onset during service, or is otherwise related to service. The Veteran and his spouse, as laypersons, are certainly competent to report matters within their personal knowledge, such as the occurrence of an injury or event, or his own symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, in the instant case, the Board finds that the question regarding the etiology of a heart disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In this regard, while the Veteran and his spouse are competent to describe his current manifestations of his heart disorder as well as his history of claimed symptoms and treatment for such disorder, the Board accords such statements regarding the etiology of such disorder little probative value as they are not competent to opine on such complex medical questions. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this regard, the diagnosis of a heart disorder requires the administration and interpretation of cardiovascular testing, such as stress tests, and knowledge of the cardiovascular system, to include the causes of heart disease. There is no indication that the Veteran or his spouse possess the requisite medical knowledge regarding the etiology of a heart disorder. Therefore, the Board affords the Veteran’s and his spouse’s statements as to the onset and etiology of his heart disorder no probative weight. As to the Veteran’s and his spouse’s reports that he experienced continuous chest pain since service, the Board finds that the contemporaneous evidence fails to show that he manifested cardiovascular-renal disease to a degree of 10 percent within the one year following his active duty service discharge in June 1979. In this regard, on his initial application for compensation, received in November 1989, the Veteran did not report having heart problems. This suggests that there was no pertinent heart symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that the Veteran is presenting all issues for which he is experiencing symptoms that he believes are related to service. In other words, the Veteran demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. In such circumstances, it is more reasonable to expect a complete reporting than for certain symptomatology to be omitted. Thus, the Veteran’s inaction regarding a claim for heart problems/a heart disorder at the time of the 1989 application for benefits, when viewed in the context of his action regarding other claims for compensation, may reasonably be interpreted as indicative of the Veteran’s belief that he did not suffer from heart problems since service, or the lack of heart symptomatology at the time he filed the claim, or both. Moreover, as above, clinical evaluations and physical examinations performed in May 1979, January 1984, and October 1987 were normal. While the Veteran was noted to have hypertension in January 1990, no other cardiovascular abnormalities were found at that time. Furthermore, the medical records on file fail to reveal any reference to a heart disorder, to include by the Veteran’s self-report, relevant to such time period. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); See Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (V.I.2003) (noting that 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”). Furthermore, a heart disorder was first diagnosed in November 1999, and the July/August 2018 VA examiner found that such disorder did not manifest until at least 1998. Therefore, the Board finds that the Veteran did not manifest cardiovascular-renal disease within one year of his June 1979 discharge from service. As such, presumptive service connection, to include on the basis of continuity of symptomatology, is not warranted for a heart disorder. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309; Walker, supra. In summary, the Board finds that the Veteran’s heart disorder not shown to be causally or etiologically related to any disease, injury, or incident during active service, ACDUTRA, or INACDUTRA, and did not manifest within one year of the Veteran’s active duty service discharge. Consequently, service connection such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a heart disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel