Citation Nr: 1808208 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-43 579 ) 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 atherosclerotic heart disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. B., Counsel INTRODUCTION The Veteran had active military service from April 14, 1980, to July 3, 1980. He also had periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard between January 4, 1980, and August 23, 2003, including a verified period of ACDUTRA from October 31, 2001, to November 21, 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, in pertinent part, denied the above listed claim. The Veteran provided testimony during a hearing before the Board in March 2012. A transcript has been associated with the claims file. The claim was remanded in June 2014 and December 2016 for additional development. FINDING OF FACT Atherosclerotic heart disease, first manifested many years after service and did not have its clinical onset during or as a result of service. CONCLUSION OF LAW The criteria for service connection for atherosclerotic heart disease are not met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist 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). Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran received VCAA notice in July 2009, prior to the initial adjudication of the issue on appeal. Therefore, additional notice is not required, and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The RO has obtained all available service treatment records and all identified and available VA and private treatment records. Although the Veteran reported VA treatment beginning in 1980, such records have not been found to exist. Moreover, as explained below, the Veteran has reported that his heart symptoms began during treatment in 2001. The Veteran has not identified any outstanding and available medical treatment records. The Board acknowledges that the Veteran has not been provided with a VA examination in this claim and finds that one is not warranted. The evidence demonstrates that the Veteran's current heart disability was first diagnosed about six years after his discharge from Reserve service and service treatment records are negative for any heart disability/diagnosis. The Board further acknowledges that the Veteran reported during the Board hearing that an MRI during service in 2001 demonstrated that he had "heart problems." See Board Hearing Transcript (Tr.) at 5. However, his service treatment records, including an MRI dated in November 2001, failed to corroborate his reports. There is no credible and competent evidence demonstrating or suggesting a link between atherosclerotic heart disease and service. The issue on appeal was previously before the Board in June 2014 and December 2016, when it was remanded for additional development. In accordance with the remand instructions, all available VA treatment records were obtained and a supplemental statement of the case was issued. The Board finds that the record reflects substantial compliance with the prior remand instructions, and, as such, the Board may proceed with adjudication of the claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not raised any other 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 duty to assist argument). Therefore, VA has also fulfilled its duty to assist a veteran in the development of the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA) or injury incurred or aggravated by inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110, 1131 (2012). Under 38 U.S.C. § 101(22)(a) and (c) ACDUTRA means, in pertinent part, full-time duty in the Armed Forces performed by Reserves for training and full-time duty as members of the Army National Guard or Air National Guard of any State. Id. The Veteran contends that he incurred atherosclerotic heart disease as a result of military service. The Board finds that service connection is not warranted. Service treatment records are negative for any complaints, treatment, or diagnosis of atherosclerotic heart disease. Examinations in November 1979, May 1980, May 1984, November 1990, and August 1995 were all negative for any indication of a heart disability. As noted above, the Veteran reported during the Board hearing that an MRI during service in 2001 demonstrated that he had "heart problems." See Board Hearing Transcript (Tr.) at 5. His service treatment records, however, including an MRI dated in November 2001, failed to corroborate his reports. The November 2001 MRI, the only MRI of record in 2001, revealed no evidence of a heart disability. The remaining treatment records from 2001 fail to show a diagnosis of any "heart problems" or atherosclerotic heart disease. The first evidence of atherosclerotic heart disease in the medical evidence is a private treatment record diagnosing mild atherosclerotic heart disease in June 2009, about six years post-discharge from Reserve service, and eight years post-discharge from the Veteran's period of ACDUTRA in 2001. To the extent the Veteran has reported that his atherosclerotic heart disease began during service, the Board notes that he is not competent to render such an opinion. To diagnose a specific disability and opine as to the etiology of such symptoms requires medical expertise when the question is a complex one, as is so in this case. See Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The record does not show that the Veteran has such expertise. Moreover, the record does not demonstrate that any heart disability was noted during service or for six years after his discharge. The Veteran has not submitted competent and credible evidence suggesting or demonstrating that his atherosclerotic heart disease began during or as a result of military service. Based on the forgoing, the Board finds that service connection for atherosclerotic heart disease is not warranted. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim, and it is, therefore, denied. As there is not an approximate balance of evidence, that benefit of the doubt rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Service connection for atherosclerotic heart disease is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs