BVA9501779 DOCKET NO. 93-08 870 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to secondary service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. B. Weiss, Associate Counsel INTRODUCTION The veteran had active military service from August 1953 to February 1954. The Board of Veterans' Appeals (Board) will confine its decision herein to the issue of secondary service connection for a heart disorder, as the veteran and his representative have argued specifically and exclusively for service connection for a heart disorder on this basis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that a heart disorder with implantation of a pacemaker was caused by his service-connected anxiety reaction with hyperhidrosis, also diagnosed as psychophysiological reaction. He particularly asserts in an October 1992 submission that because a pathology report following sympathectomy described his ganglion cells as large with aggregates of brownish black granular pigment, his nervous disorder is organic and caused a heart disorder. He points out that the heartbeat is regulated by the autonomic nervous system. He cites various medical studies for the proposition that a nervous disorder can lead to heart pathology. In his substantive appeal, he claims that the issue has been wrongly construed as cardiovascular in nature when it should be viewed as cardioneural, and asserts that this is a "clear and unmistakable" error. He requests Department of Veterans Affairs (VA) examination by a cardiologist for an evaluation of the medical question presented by this claim, and that the Board consider his medical records of the 1950's and 1960's. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence of a well grounded claim for secondary service connection for a heart disorder. FINDING OF FACT Service-connected anxiety reaction with hyperhidrosis, also diagnosed as psychophysiological reaction, is not linked by any pertinent medical evidence to any heart disorder. CONCLUSION OF LAW The veteran has not submitted evidence of a well-grounded claim, and there is no matter before the Board for review. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310 (1993). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310. The threshold question to be addressed is whether the veteran has presented a well grounded claim for service connection. If he has not presented a well grounded claim, then his appeal must fail and there is no duty to assist him further in the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1992). Case law provides that although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992). The United States Court of Veterans Appeals (Court) has held that the "quality and quantity" of the evidence required to meet the statutory burden of presenting a well grounded claim will "depend upon the issue presented by the claim." Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under [38 U.S.C.A. §] 5107(a). See Cartright v. Derwinski, 2 Vet.App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony 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 section 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak, 2 Vet.App. at 611. If the claim is not well grounded, the claimant cannot invoke the VA's duty to assist in the development of the claim. See 38 U.S.C.A. § 5107(a) (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). Further, in a claim for secondary service connection for a diagnosis clearly separate from the service-connected disorder, the veteran must present evidence of a medical nature to support the alleged causal relationship between the service-connected disorder and the disorder for which secondary service connection is sought, in order for the claim to be well grounded. See Jones (Wayne L.) v. Brown, No. 93-315 (U.S. Vet. App. Nov. 14, 1994). No such requirement exists, however, in a case in which a veteran is claiming secondary service connection, in essence, for an alleged symptom, such as painful headaches. See Magana v. Brown, No. 93-556 (U.S. Vet. App. Dec. 14, 1994). Service connection for anxiety reaction, which is the veteran's only service-connected disorder, was granted in a rating decision dated in April 1956, based on service medical records and records of VA hospitalization for this disorder. The diagnosis in June 1956 after VA hospitalization was psychophysiologic skin reaction, chronic, severe, manifested by hyperhidrosis, shakiness, restriction in interpersonal relationships, and interference with work adjustment. VA neuropsychiatric evaluation in April 1961 showed a diagnosis of psychophysiologic reaction, manifested by history of excess perspiration. Chest X- ray at that time was found to be essentially negative for abnormality. The diagnosis in June 1962 after VA hospitalization was anxiety reaction, mild, with manifestations of hyperhidrosis of the palms and soles. There was no indication of any heart disorder. A VA X-ray of May 1967 demonstrated that the heart appeared definitely and moderately enlarged. J. C. Walker, M.D., a private neurologist, saw the veteran in August 1967 and found after electroencephalography that the veteran's condition was consistent with temporal lobe convulsive disorder, as opposed to an anxiety state. In October 1967, the veteran underwent VA hospitalization for observation for a convulsive disorder, which was not found. Psychiatric examination at that time showed a diagnosis of psychoneurosis, not classified. Chest X-ray at that time revealed that the heart was moderately enlarged, and had increased 2 centimeters in its transverse diameter since April 1961. The transverse diameter was 17.5 centimeters compared to an intrathoracic diameter of 32 centimeters. The aortic knob was not prominent and the lungs showed no infiltrate. Dr. Walker again saw the veteran in July 1969, when no abnormality was seen on electroencephalogram during the resting alert stage. The background activity was the same as in August 1967, but without spike activity from the right temporal region. The veteran was privately treated for blackouts in 1970, which he stated began in 1954 and were associated with consumption of 2 or 3 beers. The impression was that the syncopal episodes were related to a temporal lobe abnormality. In February 1974, the veteran underwent private sympathectomy for hyperhidrosis secondary to neurovascular imbalance. The pathology report of that surgery states that the cells of one tissue slide appeared large and some ganglion cell cytoplasms had aggregates of brownish black granular pigment. Private hospitalization in August 1989 revealed diagnoses of sick sinus syndrome, with tachy-brady syndrome, atrial flutter necessitating right atrial overdrive pacing, and long pauses on medical therapy. The veteran underwent implantation of a permanent pacemaker. Cardiac catheterization showed no significant coronary artery disease, normal global left ventricular systolic dysfunction, mild mitral valve prolapse, mild mitral regurgitation, mild elevation of the right sided pressures, and successful cardioversion from atrial flutter to normal sinus rhythm while using atrial overdrive pacing. Private chest X-ray in August 1989 showed cardiomegaly, status post pacemaker placement. The progress notes for this hospitalization show that the veteran was very curious as to whether his status post dorsal sympathectomy for hyperhidrosis could cause an attack of shakiness and anxiety, which, it was noted, was not reflected by telemetry changes. Panic disorder was suspected. In September 1991, the veteran was seen for VA psychiatric examination where he reported that he had been hospitalized privately in 1974 for sympathectomy and again in 1989 for pacemaker implant. The diagnosis was anxiety state with hyperhidrosis. The psychiatrist noted, in response to the question of whether a cardiovascular condition was adjunct to the neuropsychiatric condition, "It is difficult at this point in time to correlate the relationship between psychophysiological reaction which existed in 1967 and pacemaker which was implanted in 1989." Private vasodilator thallium testing in April 1992 showed indeterminate electrocardiographic response to dipyridamole infusion, due to paced rhythm, and abnormal aspect of study of borderline significance, but suggestive of myocardial ischemia in the right coronary artery distribution. There was no evidence of infarction or ischemia in the other vascular territories. The issue is whether a heart disorder is proximately due to or the result of service-connected disability. The answer to this question requires medical findings. The Board's decision makers "may consider only independent medical evidence to support their [medical] findings." Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). The veteran has asserted that various medical studies connecting emotional problems to heart disorders suffice to meet the requirement for submitting evidence of a well grounded claim. However, his claim is for secondary service connection for disorder separate from his service connected disorder, not complaints akin to a symptom of the service-connected disorder. See Magana v. Brown, No. 93-556; Jones (Wayne L.) v. Brown, No. 93-315. Therefore, the veteran must submit evidence of a medical nature to support the alleged relationship between anxiety reaction and a heart disorder, for the claim to be well grounded. We find that the cited medical studies' findings are nonspecific and not relevant to the instant case. They do not meet the requirements for evidence of a well grounded secondary service connection claim as set forth in Jones (Wayne L.) v. Brown. Further, the veteran, as a medically untrained person, is not qualified to render an opinion of evidentiary weight as to the etiology of his heart condition. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The private medical records and the VA examinations are silent for any etiological link between a heart condition and the service-connected disability. The only evidence of record which speaks to this issue is the VA psychiatric examination of September 1991, that "It is difficult at this point in time to correlate the relationship between psychophysiological reaction which existed in 1967 and pacemaker which was implanted in 1989." At most, this is an expression of a possibility of an etiological relationship. By no means is it a finding of such relationship. Moreover, an expression of a possible causal connection is equivalent to speculation and not evidence of a well-grounded claim. In Tirpak v. Derwinski, 2 Vet.App. 609 (1992), the Court found that the appellant's claim for service connection for the cause of the veteran's death was not well grounded because it was supported only by a doctor's statement that the death may or may not have been averted, had the veteran not had his service- connected disability. The Court found this statement to be "speculative," and that it did not conform with the requirements of 38 U.S.C.A. § 5107(a) pertaining to well-grounded claims. Similarly, in Perman v. Brown, 5 Vet.App. 237 (1993), the veteran claimed that his post-traumatic stress disorder (PTSD) caused his hypertension. An independent medical expert (IME) in that case was asked to opine on what relationship existed between the PTSD and hypertension. He responded, in part, "I am sorry that I cannot come up with an absolute opinion which would provide you with a 'yes' or 'no' response to the question posed." The Court held that the IME's response was "non-evidence," as he had not, in fact, rendered an opinion on the issue at hand. Id. at 241. Accordingly, since evidence has not been submitted that shows a causal connection between a heart condition and the service- connected disability, this claim is not well grounded. No further duty to assist in developing this claim, such as provision of a VA cardiological examination, exists. We also decline to address the issue of whether the regional office committed clear and unmistakable error (CUE), when it viewed the veteran's heart disorder as cardiovascular rather than as cardioneural. Pertinent regulations make clear that the concept of CUE applies only to denials of claims which have become final. See 38 C.F.R. § 3.105(a) (1993). The instant claim did not become "final"; therefore, the concept of CUE is inapplicable to the regional office's actions. ORDER The claim for secondary service connection for a heart disorder is dismissed. M. SABULSKY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.