Citation Nr: 1648520	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  14-02 862	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for coronary artery disease with cardiomyopathy, status-post myocardial infarction (heart disability), to include as secondary to service-connected cold injury residuals.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

K. M. Georgiev, Associate Counsel





INTRODUCTION

The Veteran served on active duty from February 1951 to February 1954. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico, which denied the benefit on appeal.

The Veteran initially requested a hearing before the Board, but in October 2015 he withdrew his hearing request.  See 38 C.F.R. § 20.704(e) (2016).

This matter was remanded by the Board in May 2016 for a VA examiner's opinion.  As an additional VA examination was conducted, remand instructions are complete.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The preponderance of the evidence is against finding that the Veteran has a heart disability that is etiologically related to a disease, injury, or event which occurred in service.

2.  The preponderance of the evidence is against finding that the Veteran has a heart disability that is caused or permanently aggravated by service-connected disabilities to include cold injury residuals.




CONCLUSION OF LAW

Service connection for heart disability is not warranted.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

VA's duty to notify was satisfied by an April 2012 letter.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.  

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4)(i) (2015).  The Veteran was provided a VA examination in May 2012 and June 2016.  The examiners took into account the Veteran's reported history, current symptoms, and review of the available private and VA treatment records.  Therefore, the Board finds the examination reports to be thorough and complete and sufficient upon which to base a decision with regards to these claims.  See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Legal Criteria for Service Connection

Pertinent VA law and regulations provide that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016).  Generally, this requires (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(d).  

Alternatively, service connection may be established either by showing that a chronic disability or disease was incurred during service and later manifestations of such chronic disability or disease are not due to intercurrent cause(s) or that a disorder or disease was incurred during service and there is evidence of continuity of symptomatology which supports a finding of chronicity since service.  38 C.F.R. § 3.303(b).  When a chronic disease becomes manifest to a degree of 10 percent within one year of a veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service.  38 U.S.C.A. § 1112 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2016).  

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be more persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value.

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2014).

Facts and Analysis

The Veteran maintains that his currently diagnosed heart disability was either caused by his military service or secondary to his service-connected cold injury residuals or in-service pneumonia.  

In lay statements from the Veteran and a service buddy, they recalled the Veteran experiencing chest pain during service. 

The Veteran was afforded a VA examination in May 2012 to determine the nature and etiology of his heart disability.  The examiner opined that the heart disability was less likely than not related to an event, injury, or disease during service.  She provided the following rationale: "Frostbite of the feet does not cause ischemic cardiomyopathy.  His heart disease is due to a host of risk factors, including family history, tobacco abuse, hypertension, hyperlipidemia, diabetes and sleep apnea."  The Board then remanded the matter for an opinion to discuss whether the Veteran's currently diagnosed heart disability was aggravated by his service-connected disability.

The Veteran was afforded a VA examination again in June 2016.  The examiner noted diagnoses of coronary artery disease and cardiomyopathy, less likely than not 
incurred in or caused by the claimed in-service injury, event, or illness, including frostbite residuals.  The examiner included discussion of the nature of frostbite and the type of frostbite most likely experienced by the Veteran, which is superficial frostbite.  The examiner stated that this is supported by Veteran's STRs, his lack of description of blistering or severe pain requiring narcotics, lack of any apparent concern regarding auto-amputation and by absence of structural abnormalities of the feet (grooved nails, toe-joint stiffness or radiographic abnormalities such as punched-out lesions, or skin discoloration).  The examiner stated that review of the literature fails to provide any mention of lasting systemic effects from frostbite, including no mention of causing/aggravating CAD.  The examiner concluded that the Veteran's traditional risk factors of diabetes, tobacco use, Male gender, history of CVA, and advanced age are much more likely causes of his CAD with complications, with no aggravation from history of superficial foot frostbite with residual local cold intolerance.  In regard to the Veteran's non-service connected pneumonia, the examiner stated that the in-service pneumonia experienced by the Veteran apparently resolved without complications, further, there is no medical literature suggesting that uncomplicated pneumonia can, over 40 years after resolution, cause or aggravate heart disease.

Having carefully reviewed the record, the Board has determined that service connection is not warranted for a heart condition.  Although the evidence reveals that the Veteran currently suffers from heart disease, the most probative evidence of record, the June 2016 VA examiner's opinion, does not etiologically link the conditions to service or service-connected cold injury residuals.  

In coming to this conclusion that that service connection is not warranted, the Board notes that a heart condition was not shown during the Veteran's military service, or within the first year following separation.  Thus, a heart disability cannot be presumed to have been incurred therein.

The Board finds the June 2016 VA examination most probative.  The examination indicates there is no medical basis for attributing the heart condition to service, provides an adequate rationale to support the conclusion, and is based upon review of the claims file and the May 2012 examiner's report, which included a physical examination of the Veteran.  The June 2016 examiner stressed that the present heart condition is most likely the result of diabetes, tobacco use, Male gender, history of CVA, and advanced age, and that in-service pneumonia and service-connected cold injury residuals less likely as not caused or aggravated the heart condition.  The examiner included extensive discussion of the nature of frostbite, generally and in regard to the Veteran, in his rationale in positing a negative nexus.

The Board has fully considered the Veteran's lay statements that he has suffered chest pain during service which he believes is related to his current heart condition.  The Board notes that while the Veteran is competent to relay his experience, such as suffering chest pain during service, lay people are generally not competent to diagnose the cause of pain or establish a causal connection between the chest pain in-service and any present heart disorders.  The Veteran has not been shown to be competent, by experience or training, to provide medical conclusions, especially as to complex medical diagnoses and opinions of etiology.  As such, the Board ascribes far more probative value to the conclusions of the June 2016 examiner who concluded that the Veteran's current heart condition is less likely than not a result of military service.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  

In sum, upon careful review and weighing of the evidence, with reasoning as detailed above, the Board finds that the preponderance of the evidence is against the claim for service connection of a heart disability, and the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001).  The appeal must therefore be denied.


ORDER

Entitlement to service connection for coronary artery disease with cardiomyopathy, status-post myocardial infarction (heart disability) is denied.




____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s