Citation Nr: 0001842 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 96-39 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUE Entitlement to service connection for heart disease. ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The veteran served on active duty from February 1946 to February 1949. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Department of Veterans Affairs (VA), Manila, Philippines, Regional Office (RO). In an August 1997 decision, the Board determined that the claims for entitlement to service connection for heart disease, hypertension, and pulmonary tuberculosis were not well-grounded, and the claims were denied. Thereafter, a timely appeal of that decision was filed to the United States Court of Appeals for Veterans Claims (formerly the Court of Veteran Appeals) (Court). In an Order, dated in March 1999, the Court determined that the veteran's claims were well- grounded. See [citation redacted]. In the May 1999 Order, the Court determined that the veteran's claims for entitlement to service connection for heart disease, hypertension, and pulmonary tuberculosis were well-grounded. [citation redacted]. The Court determined, however, that a remand of the claim for service connection for pulmonary tuberculosis was not appropriate. The Court indicated that based upon the evidence of record, the claim would not succeed on the merits, and therefore, the Board's decision that the claim was not well-grounded was not prejudicial error. [citation redacted]. The Court held that the claim for entitlement to service connection for hypertension to be abandoned by the veteran, since it was not raised in the veteran's brief. Id. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained insofar as possible by the RO. 2. The veteran's heart disease was not incurred in service, did not manifest within one year from service separation, and is not medically related to the veteran's period of service. CONCLUSION OF LAW Heart disease was not incurred or aggravated in service, and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board finds that the veteran's claim for entitlement to service connection for heart disease is well-grounded. The Board also finds that the VA has met its duty to assist the veteran in the development of his claim. The Board is satisfied that all facts have been properly developed. The RO made a diligent effort to obtain all pertinent treatment records identified by the veteran, but to no avail. In October 1995 and in November 1996, the RO requested the veteran to provide additional evidence in support of his claim. No further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.326 (1999). In this case, it appears that complete copies of the veteran's service medical records are not available. The Board finds that the RO made a diligent effort to locate and obtain complete copies of the veteran's service medical records. The National Personnel Records Center (NPRC) conducted a search for the veteran's service medical records in April 1996, and indicated that there were no service medical records, because such records were destroyed in a fire. In cases where the veteran's service medical records are unavailable through no fault of his or her own, there is a heightened obligation to explain findings and conclusions and to carefully consider the benefit of the doubt doctrine under 38 U.S.C.A. § 5107(b). O'Hare v. Derwinski, l Vet. App. 365 (1991). Pertinent Law and Regulations In order to establish service connection, the facts, as shown by evidence, must demonstrate that a disease or injury resulting in current disability was incurred during service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 1991). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for a disability initially diagnosed after service when shown to be related to service. 38 C.F.R. § 3.303(d) (1999). In addition, as the veteran served continuously for ninety (90) or more days during a period of war or after December 31, 1946, if cardiovascular disease became manifest to a degree of 10 percent within one year from the date of his termination of such service, such condition would be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. Such a presumption would be rebuttable, however, by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). The VA must determine whether evidence supports the veteran's claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Analysis The veteran asserts that he incurred heart disease within the one year from his separation from service in February 1949. He claims that he was not treated for this disorder while he was in service. After careful review of the evidence of record, the Board finds that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for heart disease. As noted above, the veteran's service medical records were destroyed in a fire. The Board points out, however, that the veteran contends that he was not treated for his claimed disability while in service. The only evidence that the veteran submitted in support of his claim was a medical certificate by Dr. Sta Maria and his own lay statements. In the October 1995 medical certificate, Dr. Sta Maria stated that the veteran had been treated by him, on and off, since 1950 up to the present, for "hi-blood w/ BP 220/120, malignant," and "Heart disease, angina pectoris." Dr. Sta Maria stated that the veteran used to consult him off and on due to those debilitating diseases. He indicated that on that date, the veteran consulted him for the last time and his disabilities "mention above become more progress." Dr. Sta Maria stated that clinical records and X-ray examinations could not be issued due to a fire that gutted his house and clinic in 1983. In a memorandum for file, the RO indicated that an interview with Dr. Sta Maria disclosed that the doctor graduated from the University of San Tomas and received his medical license in 1937; he specialized in pulmonary diseases. The RO indicated that according to the records on file at the Professional Regulations Commission, Dr. Sta Maria last renewed his license in 1975. His correspondence indicated that the doctor's current position was as a medical officer for the Department of Health. The RO indicated that Dr. Sta Maria was a regular contributor of medical statements in support of VA claimants. The statements usually identify medical conditions and show the period of time that treatment was rendered, oftentimes 40 to 50 years ago. The RO indicated that they had made numerous requests for Dr. Sta Maria clinical and/or treatment files contemporaneous to the periods of alleged treatment; however, they have been advised by the doctor that all such records were destroyed in a fire in 1983. The RO concluded that the statements by Dr. Sta Maria describing medical histories prior to 1983 are based solely upon the doctor's memory and are unsubstantiated by supportive medical documentation. The RO determined that it would serve no useful purpose to pursue further development of clinical records from Dr. Sta Maria for treatment rendered prior to 1983. The Board finds that the statement by Dr. Sta Maria is not credible and has no probative value. It appears that Dr. Sta Maria based this statement upon his memory. There are no clinical records available to support his medical statement. The Board points out that the medical statement is based upon his recollection of events that occurred forty-five years prior. For instance, Dr. Sta Maria indicated that he had treated the veteran for high blood pressure since 1950 and he reported a blood pressure reading of 220/120. The Board finds that it is not believable that Dr. Sta Maria would be able to recall such detailed information about the veteran after forty-five years. The veteran asserts that his cardiovascular disorder first manifested within one year from the day he separated from service, which was February 7, 1949. The Board points out that the medical statement by Dr. Sta Maria does not indicate the date on which the heart disease was diagnosed. Dr. Sta Maria only states that the treatment began in 1950. There is no indication that this disorder was diagnosed within the presumptive period, which was from February 7, 1949 to February 7, 1950. Even if Dr. Sta Maria's statement was credible, it is more probable that the veteran's disorder was diagnosed sometime after February 7, 1950. Thus, the Board concludes that this evidence is not sufficient to establish service connection for heart disease, on a presumptive basis, under the provisions of 38 C.F.R. § 3.307 and § 3.309. The Board also notes that as discussed above, the RO investigated Dr. Sta Maria and concluded that his statements were not substantiated. The Board also points out that in Cruzada v. Gober, U.S. Vet. App. No. 96-1132 (Sep. 16, 1997), a non-precedential memorandum decision, a judge for the Court held that the Board's determination that Dr. Santa Maria's certification is not credible has a plausible basis in the record. In Alcaide v. Gober, U.S. Vet. App. No. 96-1259 (Sep. 16, 1997), a non-precedential memorandum decision, another judge of the Court affirmed a Board decision in which the Board's determined that Dr. Santa Maria's statements were minimally probative because they were based upon the doctor's memory of events occurring more than 25 years ago, and there was no clinical evidence to support the doctor's opinion. The circumstances in the Cruzada case were strikingly similar to those in the case at hand, wherein Dr. Santa Maria alleged that he had treated the veteran in question for many years for heart disease. The Court, in Cruzada, noted that Dr. Santa Maria based his diagnosis in that case entirely on his recollection of events that occurred many years earlier--more than 40 years, without the benefit of clinical records to consult, and yet, in spite of that, he was able to recall very specific information (i.e., the exact blood pressure reading that he supposedly recorded when examining the veteran more than 40 years earlier). The Court held that his purported ability to recall that level of information under those circumstances was beyond what could reasonably be expected and, therefore, was speculative and insufficient to serve as a basis for service connection. The Board believes that this case presents similar circumstances and that a similar conclusion is warranted. The veteran asserts that his heart disease first manifested within one year from his service separation in February 1949. Although the veteran and other lay persons are competent to provide an account of the veteran's symptoms, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge." Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran himself does not possess the technical or specialized knowledge to provide a probative conclusion with respect to the issue of whether his heart disease was incurred in service or is medically related to his period of service, or when this disorder first manifested. Thus, the Board finds that the veteran's statements are not sufficient to establish service connection for heart disease. The Board finds that the veteran has not submitted any probative, credible evidence that establishes that heart disease was incurred in service or within one year from service separation in February 1949, or is medically related to his period of service. 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); 38 C.F.R. §§ 3.102, 4.3 (1999). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In this case, for the reasons stated above, the Board has concluded that the preponderance of the evidence is against the veteran's claim for service connection for heart disease. The doctrine of reasonable doubt, therefore, does not apply in this case. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49. Accordingly, the veteran's claim must be denied. ORDER Entitlement to service connection for heart disease is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals