Citation Nr: 0007136 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-10 162 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for cardiovascular disability. 2. Entitlement to service connection for respiratory disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Wright, Associate Counsel INTRODUCTION The veteran served on active duty from June 1965 to June 1967 and from September 1971 to September 1989. This matter comes before the Board of Veterans' Appeals (Board) from a June 1996 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in May 1997, a statement of the case was issued in June 1998, and a substantive appeal was received in June 1998. In October 1998, the veteran testified at a personal hearing at the RO. FINDINGS OF FACT 1. The record includes a medical diagnosis of current cardiovascular disability, competent evidence of inservice incurrence, and medical evidence of a nexus to the veteran's active military service. 2. The negative evidence is in a state of equipoise with the positive evidence on the question of whether the veteran's coronary artery disease had its inception during his active military service. 3. The record includes a medical diagnosis of current respiratory disability, competent evidence of inservice incurrence, and medical evidence of a nexus to the veteran's active military service. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for cardiovascular disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's cardiovascular disability was incurred during his active military service. 38 U.S.C.A. §§ 1110, 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1999). 3. The veteran's claim of entitlement to service connection for respiratory disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issues before the Board involve claims of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Certain chronic disabilities, such as cardiovascular disease, including hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, it should be noted at the outset that statutory law as enacted by the Congress charges a claimant for VA benefits with the initial burden of presenting evidence of a well- grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim has been defined by the United States Court of Appeals for Veterans Claims (Court) as "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 91 (1990). Where the determinative issue involves a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). A claimant therefore cannot meet this burden merely by presenting lay testimony and/or lay statements because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well- grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In order for a service connection claim to be well-grounded, there must be competent evidence: i) of current disability (a medical diagnosis); ii) of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and; iii) of a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet.App. 498, 506 (1995). Moreover, the truthfulness of evidence is presumed in determining whether a claim is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). The Board emphasizes, however, that the doctrine of reasonable doubt does not ease the veteran's initial burden of submitting a well-grounded claim. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). Alternatively, the Court has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. I. Cardiovascular Disability. The veteran also contends that he should be service connected for cardiovascular disability as it can be linked to his period of active service. To begin with, the Board views this claim as well-grounded. The record includes a medical diagnosis of current cardiovascular disability. Moreover, a June 1998 letter from Carl J. Shealy, M.D. clearly includes a medical opinion linking the veteran's current cardiovascular problems to his military service. With a well-grounded claim arises a duty to assist. 38 U.S.C.A. § 5107(a). While noting that the record as it stands is not entirely clear from a medical perspective, the Board finds that the record does allow for equitable appellate review and that there is no need for further development. The veteran's service medical records include a report of examination in April 1980 at which time the veteran reported having had "high or low blood pressure." No cardiovascular diagnosis was made. Various electrocardiogram studies during service were interpreted as being within normal limits. Other service records reveal that the veteran has received treatment for high cholesterol in March 1988. A three-day blood pressure screening performed at that time showed readings of 132/100, 154/92 and 144/102. No diagnosis was reported at that time. The veteran complained of chest pain in May 1988 and was diagnosed with asthmatic bronchitis at that time. In June 1989 the veteran again complained of chest pain. A June 1989 report of retirement examination referred to hypertension in 1975, normal now. Blood pressure was recorded as 146/88 at that time. In July 1989, the veteran was noted to have elevated cholesterol and a cardio risk assessment noted the veteran's chest pain and elevated cholesterol readings. In October 1993, records from Lexington Medical Center show that the veteran reported to the emergency room complaining of chest pain and a throbbing left arm. He was diagnosed with CAD and suffered a myocardial infarction and then underwent a five-vessel bypass surgery. In February 1994, the veteran underwent a stress test and the test was deemed mildly abnormal with a small area of anterolateral ischemia. In May through June 1995, the veteran was hospitalized at Providence Hospital complaining of atypical chest pain. In March 1996, at the veteran's hypertension VA examination, the veteran was diagnosed with hypertension, a history of CAD status post five vessel bypass and a history of hypercholesterolemia. Finally, in June 1998, the veteran's private physician, Carl Shealy, M. D. reviewed the veteran's medical records and wrote that he believed that the veteran had CAD prior to discharge from service. Dr. Shealy noted chest pains and shortness of breath during service as well elevated cholesterol. He further noted that "it was being treated in the form of diet and smoking recommendations. Hyperlipidemia, given [the veteran's] family history, essentially equals coronary artery disease. Any current limitations he has after his myocardial infarction can be construed as being due to the pre-existing illness, hyperlipidemia." Dr. Shealy opined that given the veteran's medical history, he believed that the veteran "certainly had coronary artery disease that was not evident on every reasonable screening test available..." The above-cited items of evidence show that cardiovascular disease was not medically diagnosed during service or within one year of service. However, service connection does not require an actual medical diagnosis during such periods, only evidence that the disability was manifested. The underlying question in this case is whether cardiovascular disease was manifested during service or within the one year presumptive period after the veteran's discharge from service. The Board believes it significant that complaints of chest pain were noted during service. However, such complaints might have been associated or due to respiratory disability. Nevertheless, a three-day blood pressure series did reveal consistently elevated readings. However, no medical diagnosis was made with reference to such readings. The Board also notes service medical record references to hypertension (apparently in 1975), but such records do not include a reported medical diagnosis, although presumably the medical care providers who were treating the veteran were aware of the possibility of cardiovascular disease or hypertension. While the evidence does not clearly support Dr. Shealy's opinion, there is sufficient positive evidence to raise a reasonable doubt. Accordingly, entitlement to service connection for cardiovascular disability is warranted. 38 U.S.C.A. § 5107(a). II. Respiratory Disability. The veteran's service medical records show that the veteran was diagnosed with asthmatic bronchitis in May 1988. In August 1988, the veteran was again noted to have possible asthmatic bronchitis. However, at his separation examination, the veteran was not diagnosed with bronchitis, although a diagnosis of asthma was made at that time. In May and June of 1994, the veteran was hospitalized at the Providence Hospital due to complaints of recent diaphoresis, vague chest discomfort and lightheadedness. Upon discharge, the veteran was diagnosed with, among other things, dizziness of uncertain etiology, atypical chest pain, CAD and chronic bronchitis. Chest x-rays revealed no acute process. In September 1996, the veteran presented to the emergency room at the private Lexington Medical Center complaining of right sided chest tightness with yellow sputum production. He was diagnosed with pleurisy and bronchitis. Finally, in January 1997, the veteran was diagnosed with bronchitis versus early pneumonia at the Lexington Doctor's Care Hospital. After reviewing the pertinent evidence which has been briefly summarized above, the Board finds the veteran's respiratory disability claim to be well-grounded. It appears that there is a medical diagnosis of current respiratory disability. Further, respiratory problems were documented during service as well as after service. While recognizing that certain periods of time have passed between the documented respiratory problems, the Board believes that when viewed over time, the record sufficiently shows medical documentation of a continuity of respiratory symptoms to render the veteran's claim plausible and thus well-grounded under 38 U.S.C.A. § 5107(a). ORDER Entitlement to service connection for cardiovascular disability is warranted. The veteran's claim of entitlement to service connection for respiratory disability is well- grounded. The appeal is granted to this extent, subject to the provisions set forth in the following remand portion of this decision. REMAND With the veteran's well-grounded respiratory disability claim arises a duty to assist him with the development of evidence in connection with his claim. 38 U.S.C.A. § 5107(a). Given the several respiratory disorders which have been referenced in the claims file, including service records and post- service records, the Board believes the veteran's claim involves a matter of medical complexity. Accordingly, the case is hereby REMANDED for the following actions: 1. The veteran should be scheduled for a special VA respiratory examination to ascertain the nature and etiology of all respiratory disorders found to be present. It is imperative that the claims file be made available to and be reviewed by the examiner in connection with the examination, and all indicated special tests and studies should be accomplished. After reviewing the claims file and examining the veteran, the examiner should clearly report all chronic respiratory disorders which are able to be medically diagnosed. For each chronic respiratory disorder diagnosed, the examiner should state an opinion as to whether it is at least as likely as not the such disorder(s) were manifested during the veteran's military service. 2. After completion of the above, the RO should review the expanded record and determine if the veteran's respiratory disability claim can be granted. If the benefit sought remains denied, the veteran and his representative should be furnished with an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purpose of this remand is to assist the veteran and to clarify matters of some medical complexity. The veteran and his representative are free to submit additional argument and evidence in connection with the matter hereby remanded to the RO. ALAN S. PEEVY Member, Board of Veterans' Appeals