Citation Nr: 0000884 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 97-17 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for cardiovascular disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from May 1969 to May 1970. The veteran filed a claim in December 1996 for service connection for a heart disability. This appeal arises from the December 1996 rating decision from the Newark, New Jersey Regional Office (RO) that denied the veteran's claim for service connection for congestive cardiomyopathy. A Notice of Disagreement was filed in March 1997 and a Statement of the Case was issued in March 1997. A substantive appeal was filed in May 1997 with a request for a hearing at the RO before a local hearing officer. In July 1997, the abovementioned RO hearing was held. This case was remanded in August 1998 for further development. The case was thereafter returned to the Board. FINDINGS OF FACT 1. The veteran's claim is plausible, and sufficient evidence for an equitable determination of the veteran's claim has been obtained. 2. It is not at least as likely as not that a cardiovascular disability had its onset in service or was present within one year postservice. CONCLUSIONS OF LAW 1. The veteran has stated a well-grounded claim for service connection for a cardiovascular disability. 38 U.S.C.A. § 5107(a) (West 1991). 2. A cardiovascular disability was not incurred in military service; a cardiovascular disability was not manifested to a compensable degree within one year following discharge from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5107(a) (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background On the March 1969 service entrance examination, no history of cardiovascular disease was reported. On clinical examination, the heart was normal. Blood pressure was 100/50. On the May 1970 separation examination, the veteran's heart was clinically evaluated as normal. Blood pressure was 100/54. The veteran was approximately 10 weeks pregnant. On VA examination in June 1971, no complaints were reported regarding the cardiovascular system. On cardiovascular system examination, sinus rhythm was normal; no murmurs were present. The chest x-rays showed nothing abnormal, and the heart was negative. Blood pressure was 100/70. No diagnosis of a cardiovascular disease was rendered. Treatment records from Michael C. Proper, M.D., dating from June 1981 to March 1986 include a letter from Dr. Proper dated June 1981 that shows that the veteran was diagnosed and was being treated for congestive cardiomyopathy. Subsequent records show ongoing treatment for congestive cardiomyopathy until April 1983 when the veteran's cardiovascular disease had resolved. A letter dated May 1985 from Dr. Proper revealed an impression of a history of cardiomyopathy, probably post partum, resolved. A March 1986 letter from Dr. Proper included an impression that the veteran had a resolved myocarditis. Also received in March 1986 was a July to August 1981 discharge summary from Cooper Memorial Center which indicates that the veteran had a known severe congestive cardiomyopathy. The final diagnoses included congestive cardiomyopathy. On VA examination in February 1986, the veteran reported that she was well until 1981 when she went to the hospital and was told that she had congestive heart failure. On examination of the cardiovascular system, the point of maximal impulse was in the fifth intercostal space, 2 cm. from the lateral midcostal line. There was a regular rate without murmur and an intermittent third heart sound. Blood pressure readings were 142/100 sitting, 136/106 recumbent, and 126/110 standing. The diagnoses included congestive cardiomyopathy and uncontrolled hypertension. A November 1987 discharge summary from Cooper Medical Center shows that the veteran entered the hospital complaining of shortness of breath and nonproductive cough. She was not on cardiac medications. The discharge diagnoses included a history of dilated cardiomyopathy. A December 1987 Holter Report from Dr. Proper includes an impression that the veteran had normal sinus rhythm with occasional single ventricular premature contractions, one run of non-sustained ventricular tachycardia, and no supraventricular tachycardias. An October 1996 letter from Dr. Proper indicates that the veteran was originally treated for severe congestive heart failure after delivery. It was felt at that time that she had a postpartum cardiomyopathy. When seen recently on follow-up, there was evidence of a cardiomyopathy. A stress test showed myocardial ischemia of the anterior wall. It was opined that the veteran had an undiagnosed cardiomyopathy, possibly postpartum, with some evidence of coronary disease occurring later than the cardiomyopathy in association with diabetes. In December 1996, the veteran filed a claim for service connection for a heart disability. By rating action of December 1996, service connection for congestive cardiomyopathy was denied. The current appeal to the Board arises from this action. At the RO hearing in July 1997 the veteran testified that while in the military, she was not hospitalized for a cardiovascular disease nor was she treated for a cardiovascular disease. The veteran testified that she first saw a Dr. Simmons for treatment for her heart; however, she did not recall the date she first saw him. The veteran additionally stated that Dr. Simmons was deceased. The veteran testified that her son was born approximately six months after she was separated from military service, and that she was not told she had a cardiovascular disease at that time. In a memorandum, received in September 1997, the veteran's representative stated that the doctor who treated the veteran had been deceased for approximately ten years and there were no records available. In August 1998 the RO sent a letter to the veteran requesting assistance for development pursuant to a Board remand. No response has been received. On a VA examination in December 1998, it was noted that the C-file was reviewed carefully. It was noted that in November 1970, the veteran delivered a boy. Upon questioning, the veteran denied having a difficult pregnancy. She additionally denied cardiovascular symptoms after delivery. She denied problems keeping up with her child or any difficulty in regard to cardiovascular symptoms. It was amply documented that the onset of cardiovascular disease secondary to congestive cardiomyopathy appeared to have occurred a decade after her delivery. There was a vague note from her Cardiologist, Dr. Propper (ph) [sic], who stated that he took care of her after delivery for cardiomyopathy, but there was no documentation to substantiate this. There was no other history of any secondary cause of cardiomyopathy potentially reversible such as hemochromatosis, thyroid disease, et cetera. The conclusions included that post partum or peri-partum cardiomyopathy occurred three months prior to delivery and up to six months after delivery classically. No documentation could be found to suggest that cardiomyopathy could occur a decade after pregnancy which could be attributable to that pregnancy. Therefore, it was concluded that there was no evidence of heart disease while in the service or seven months after service. This was amply documented in the record. There was no evidence to suggest that the veteran had a heart disability initiating in the service and becoming clinically evident one decade later. II. Analysis Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Where a veteran served 90 days or more during a war period or after December 31, 1946 and cardiovascular disease becomes manifest to a degree of 10 percent within 1 year from date of termination of 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. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991 and Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If she has not presented a well grounded claim, her appeal must fail, and there is no duty to assist her further in the development of her claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). To sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). Establishing service connection generally requires medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). Alternatively, under 38 C.F.R. § 3.303(b) (1999), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307 (1999)) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1998). The veteran is claiming that she currently has a cardiovascular disability that was incurred during service. Dr. Proper has indicated that the veteran had a history of cardiomyopathy, post partum. The veteran had a child within one year of separation from service. Therefore, as the veteran had a diagnosis of a cardiovascular disability and a physician related it to a period within one year of her service, the veteran has satisfied the threshold requirement of presenting a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has set forth a claim which is plausible. The Board is also satisfied that all relevant evidence has been properly developed, and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). While the veteran was requested in August 1998, pursuant to the August 1998 remand, to provide information to assist development of the record in this case, there has been no response. Therefore, the undersigned finds that there was compliance with the August 1998 Remand instructions and the duty to assist in this regard is satisfied. On review of the record in this case, the Board notes a conflict of evidence regarding whether a cardiovascular disability can be associated with the veteran's service. Dr. Proper has indicated that the veteran's cardiomyopathy was postpartum. There is no indication that the veteran's claims file had been reviewed. On the other hand, the VA examiner in December 1998 indicated that it was amply documented that the onset of the veteran's cardiovascular disease secondary to congestive cardiomyopathy appeared to have occurred a decade after her delivery. The examiner concluded that there was no evidence to suggest that the veteran had a heart disability initiating in the service. Rather, the disability became clinically evident one decade later. This examiner had the benefit of review of the veteran's complete record. On evidentiary evaluation, the Board finds that the December 1998 VA examination constitutes significantly probative evidence inasmuch as it entailed a comprehensive review of the veteran's medical and service history. By contrast, the opinion of Dr. Proper has greatly diminished probative value because it does not appear to be supported by the entire medical and service record. Dr. Proper gave no reasons or bases for his opinion. Importantly, he did not treat the veteran until approximately ten years postservice. (Transcript pg. 6). An attempt to get his records was futile because the veteran did not complete and return consent forms to get information from this physician as requested in VA letter issued in August 1998. In summary, the December 1998 opinion from the VA examiner clearly outweighs the opinion rendered by Dr. Proper. See Gabrielson v. Brown, 7 Vet. App. 36 (1994) (the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran). Accordingly, the Board finds that the preponderance of the evidence is against the veteran's claim of service connection for a cardiovascular disability. ORDER Entitlement to service connection for a cardiovascular disability is denied. Iris S. Sherman Member, Board of Veterans' Appeals