Citation Nr: 0001509 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 97-12 006 ) 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 J.M. Daley, Associate Counsel INTRODUCTION The veteran has recognized military service as follows: pre- war service from November 24, 1941 to December 7, 1941; beleaguered from December 8, 1941 to April 8, 1942; missing on April 9, 1942; a prisoner of war (POW) under the Japanese government from April 10, 1942 to July 27, 1942; and service with the regular Philippine Army from March 7, 1945 to April 11, 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from the January 1996, Manila, Philippines, Department of Veterans Affairs (VA) Regional Office (RO), which, inter alia, denied service connection for ischemic heart disease. By way of history, the RO, by rating decision dated in September 1983, denied entitlement to service connection for beriberi with beriberi heart disease and the Board affirmed that denial in a decision dated in December 1984. Also, a May 1992 RO rating decision characterized the issue as service connection for cardiomegaly, and found that the evidence did not warrant a change in the prior denial. However, in its September 1997 remand, the Board noted that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court"), in Ashford v. Brown, stated that "[n]otwithstanding the nomenclature and varied etiology attributed to his disability, [the veteran's] 'lung condition,' by any name, remains the same; it is 'inextricably intertwined' with his previous claim for entitlement to service connection for a lung disorder." Ashford v. Brown, 10 Vet. App. 120, 123 (quoting Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); (citing McGraw v. Brown, 7 Vet. App. 138, 142 (1994); cf. Ephraim v. Brown, 82 F.3d 399, 402 (Fed.Cir. 1996). Thus, the veteran's claim has remained one of entitlement to service connection for cardiac disease. Furthermore, the Court has held that "...unlike most attempts to reopen a previously denied claim, a claim for entitlement to service connection for POW presumptive diseases does not require any new and material evidence to reopen; the claim must merely be well grounded." Suttmann v. Brown, 5 Vet. App. 127 (1993); Pena v. Brown, 5 Vet. App. 279,280-281 (1993); see also Yabut v. Brown, 6 Vet. App. 79, 83 (1993). Thus, the matter before the Board is as phrased on the first page of this decision. The Board remanded the instant matter in September 1997. All requested actions have been accomplished to the extent possible, and the case may now be adjudicated. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The competent and probative evidence of record does not show that the veteran has ischemic or beriberi heart disease, or that he has a diagnosis of other cardiac disease that had its onset during service, was compensably manifested within a one year presumptive period, or has been otherwise related to service by competent evidence. CONCLUSION OF LAW Heart disease was not incurred in or aggravated by active service and may not be presumed to have been service incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background In an Affidavit of Philippine Army Personnel, signed in November 1945, the veteran reported suffering from malaria from April 1942 to July 1942. He reported no other injuries or illnesses. His April 1946 report of physical examination at discharge is negative for notation of cardiac disease. The veteran first submitted a formal application for VA compensation benefits in May 1983, accompanied by a medical statement signed by P.T., M.D., that same month. Dr. P.T. reported that he had been treating the veteran three times a week since March 1980; that the veteran had multiple complaints including severe chest pain; and that on examination his blood pressure was 100/70 and pulse rate was 78. Dr. P.T. referred to the veteran's POW status in 1942, and provided diagnoses that included beriberi heart disease. In June 1983, the veteran completed a POW medical history report. He reported that he had been subjected to physical intimidation and torture, experienced heat exhaustion and loss of consciousness, and did not have an adequate supply of food and water during his captivity. He asserted that he developed beriberi as a result of his POW captivity. He reported numerous symptoms during internment, such as chest pain; rapid heart beats; skipped or missed heart beats; weakness, tingling and/or pain in the fingers, feet, arms and/or legs; muscle or joint aches and pains; fever; joint swelling; leg and/or feet swelling; and muscle swelling. A VA examination was conducted in June 1983. The veteran related the above history and complained of symptoms to include chest pains. Examination revealed that the point of maximum impulse was at the fifth intercostal space within the left midclavicular line. There was a regular rate and rhythm without appreciable murmurs, and the veteran's chest was symmetrical in contour and equal in expansion. The results of an electrocardiogram (ECG) were interpreted as normal. X- rays revealed minimal cardiac enlargement. The pertinent diagnosis were mild hypertension and no medical evidence of current disabilities resulting from nutritional deficiencies, forced labor or inhumane treatment during POW status. In November 1988 the veteran completed another report of POW medical history, providing information essentially similar to prior history. A report of social survey at that time includes a report of the veteran's complaints of chest pains. An examination of the veteran was conducted by VA in November 1988. The report includes reference to the veteran's POW history. The veteran also provided a history of malaria, beriberi, dysentery, malnutrition, pulmonary tuberculosis and arthritis incurred in World War II. ECG results at that time remained normal. A chest x-ray revealed a slight increase in the transverse diameter of the heart as compared to previous films, now measuring 13.7 centimeters, but the opinion was that the cardiothoracic ratio was still within normal limits. The impression was minimal cardiac enlargement. The final diagnoses included minimal progressive cardiomegaly, and no evidence of avitaminosis, dysentery or malnutrition. In a statement dated in January 1992, M.P., M.D., reported evaluation of the veteran that month for complaints of easy fatigability, insomnia, tingling sensations and shooting pains in the extremities, epigastric pain, uncontrollable shaking of the head, hands and feet and poor vision. On examination there was evidence of a harsh blowing murmur in the aortic area. Diagnoses included cardiomegaly. At the time of a VA examination conducted in February 1992, the veteran's complaints were limited to epigastric pain. In a medical certification dated in July 1995, Dr. M.P. stated that the veteran was bedridden and unable to work. The impressions included malignant hypertension. At the time of VA cardiovascular examination in August 1995, the veteran reported a three-year history of hypertension, treated with medication, and further reported being treated for Parkinsonism three times a week. He complained of vague chest discomfort unrelated to activity and reported having been diagnosed with heart disease. Examination revealed a regular heart rate and rhythm without evidence of murmur. The first and second heart sounds were normal, and the apex beat was within the fifth intercostal line. A chest x-ray revealed progressive arteriosclerosis. The diagnosis was no ischemic heart disease. Also of record is a clinical summary report from Urdaneta Sacred Heart Hospital, dated in July 1996, which reflects that the veteran's complaints included severe body weakness and easy fatigability. Cardiac evaluation revealed a regular rate and rhythm with strong cardiac tones and without evidence of murmurs. There was no relevant diagnosis. A June 1997 clinical summary from the Ordonez Medical Clinic indicate that the veteran was seen for recent onset respiratory symptoms with fever and body weakness that that the diagnoses were pneumonia, Parkinson's disease, and mild hypertension. In September 1997, the Board remanded the veteran's case in order to obtain a medical opinion relevant to the existence/nature of cardiac any disease. The Board specified that the veteran be afforded opportunity to appear for further examination, but indicated that if he did not report an opinion should be obtained based on a review of the file. Pursuant to that remand, examinations were scheduled in October, November and December 1998 and in February 1999. The veteran did not report for any of those examinations. Thus, the veteran's claim file was made available to a physician who, in March 1999, reviewed the file, specifically noting the veteran's complaints of chest pain/discomfort. The examiner noted that there was no history of myocardial infarction, congestive heart failure or syncope. Based on the information in the file, the examiner concluded that the veteran's symptoms were "not specific for a cardiac disease. The chest pains are vague and on the two occasions that there [sic] were expressed, they did not definitely point to IHD. The available EKG's were all normal. The chest xrays, although they showed an increase in diameter, revealed normal CT ratios. As such, the cardiac symptoms are not likely related or consistent w/ a diagnosis of beriberi heart disease." Pertinent Criteria Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Where disability compensation is claimed by a former POW, omission of history or findings from clinical records made upon repatriation is not determinative of service connection, particularly if evidence of comrades in support of the incurrence of the disability during confinement is available. Special attention will be given to any disability first reported after discharge, especially if poorly defined and not obviously of intercurrent origin. The circumstances attendant upon the individual veteran's confinement and the duration thereof will be associated with pertinent medical principles in determining whether disability manifested subsequent to service is etiologically related to the POW experience. 38 C.F.R. § 3.304(e) (1999). A POW-related disease will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service, provided that the veteran served 90 days or more during a war period or served after December 31, 1946. The requirement of 90 days' service means active, continuous service within or extending into or beyond a war period, or which began before and extended beyond December 31, 1946, or began after that date. Any period of service is sufficient for the purpose of establishing the presumptive service connection of a specified disease under the conditions listed in § 3.309(c) and (e). 38 C.F.R. § 3.307(a). Diseases specific as to former POWs are listed in 38 C.F.R. § 3.309(c) and must have become manifest to a degree of 10 percent or more at any time after discharge or release from active service to warrant service connection. 38 C.F.R. § 3.307(a)(5). Thus, if a veteran is a former POW and was interned or detained for not less than 30 days, the following diseases shall be service-connected if manifest to a degree of 10 percent or more at any time after discharge or release from active military, naval, or air service even though there is no record of such disease during service, provided the rebuttable presumption provisions of § 3.307 are also satisfied: avitaminosis; beriberi (including beriberi heart disease); chronic dysentery; helminthiasis; malnutrition (including optic atrophy associated with malnutrition); pellagra; any other nutritional deficiency; psychosis; any of the anxiety states; dysthymic disorder (or depressive neurosis); organic residuals of frostbite, if it is determined that the veteran was interned in climatic conditions consistent with the occurrence of frostbite; post- traumatic osteoarthritis; irritable bowel syndrome; peptic ulcer disease; and peripheral neuropathy except where directly related to infectious causes. 38 C.F.R. § 3.309(c). In July 1994, the Secretary published a final rule in the Federal Register that amended 38 C.F.R. § 3.309(c) by adding the following note: "[f]or purposes of this section, the term beriberi heart disease includes ischemic heart disease in a former prisoner of war who had experienced localized edema during captivity." 38 C.F.R. § 3.309(c). The factual basis for the above may be established by medical evidence, competent lay evidence or both. Medical evidence should set forth the physical findings and symptomatology elicited by examination within the applicable period. Lay evidence should describe the material and relevant facts as to the veteran's disability observed within such period, not merely conclusions based upon opinion. The chronicity and continuity factors outlined in § 3.303(b) will be considered. 38 C.F.R. § 3.307(b). A presumption in favor of service connection also exists for any veteran, having served for 90 days or more in a period of war, who, within one year after service, develops to a degree of 10 percent cardiovascular -renal disease to include hypertension, valvular heart or myocarditis. 38 C.F.R. §§ 3.307, 3.309. Moreover, service connection may 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). Analysis The Board first notes that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 in that he has presented a claim that is plausible based on all the evidence, to include the fact of his POW captivity, his report of symptoms (deemed credible for the purposes of well grounding the claim), and post-service medical statements showing a notation of cardiac findings and/or heart disease. The latter are also presumed credible for the purpose of well grounding the claim and the probative value of such is not weighed prior to the determination of well groundedness. 38 U.S.C.A. § 5107(a); King v. Brown, 5 Vet. App. 19, 21 (1993). The Board is also satisfied that all relevant and available facts have been properly developed. Here, the Board notes that the veteran has been afforded multiple opportunities to submit or identify additional evidence and to appear for VA examination. In any case, VA has obtained a medical opinion in connection with the veteran's appeal. He has not identified any additional, relevant evidence that has not been requested or obtained. Thus, no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Once a claim is found to be well grounded, the presumptions of credibility and entitlement of the evidence to full weight no longer apply. In the adjudication that follows a finding of well groundedness, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). 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, service records are negative for any noted cardiac defect or disability. The Board recognizes that Dr. P.T., in May 1983, many years after service, included a diagnosis of beriberi heart disease in a medical statement. However, the doctor did not report any findings whatsoever to support that stated diagnosis, citing only the veteran's complaints of severe chest pain and his history of POW captivity. In fact the only cardiovascular findings reported were a blood pressure reading of 100/70 and a pulse rate of 78. It does not appear that Dr. P.T. reviewed any relevant diagnostic studies or other records reflecting the veteran's medical history. However, a VA examination to assess any cardiac disease was conducted in May 1983 and included an electrocardiogram and chest X-ray. Although mild hypertension was found there was no diagnosis of any type of heart disease. Similarly a VA examination in November 1988, which again included a chest X-ray and electrocardiogram, did not result in a diagnosis of ischemic or beri beri heart disease, although there was a diagnosis of minimal progressive cardiomegaly. Additionally, when the veteran was examined by the VA for heart disease in August 1995, the conclusion was that there was no evidence of ischemic heart disease. That examination also included an electrocardiogram. Subsequent records are consistent with that conclusion in that they show no diagnosis of ischemic heart/beri beri heart disease. The Board recognizes that post-service evaluations have revealed heart enlargement, and that post-service records include diagnoses of cardiomegaly. A diagnosis of cardiomegaly was not shown in service or until many years thereafter. Cardiomegaly is not a disease presumptive to POWs. Thus, there is no basis for a grant of service connection for cardiomegaly under 38 C.F.R. §§ 3.303(a), 3.307, 3.309. Nor has any competent professional related cardiomegaly to the veteran's period of service. See 38 C.F.R. § 3.303(d). Based on post-service cardiac findings of heart enlargement in a POW claiming beriberi heart disease, a VA opinion was nevertheless obtained. The examiner reviewed the claims file and noted the veteran's complaints, as well as the positive and negative cardiac findings of record, stating that the complaints of chest pains had been vague and did not definitely point to ischemic heart disease. The examiner concluded that the veteran's cardiac symptoms were not likely related or consistent with a diagnosis of beriberi heart disease. That opinion is not refuted by any competent and probative medical evidence establishing that the veteran does have beriberi heart/ischemic disease. In sum, the preponderance of the competent and probative evidence of record shows that the veteran does not have ischemic or beriberi heart disease. Additionally, there is no competent and probative evidence showing that he has some other cardiac disease that had its onset during service or was compensably manifested within the one year presumptive period, or that is otherwise related to service. Thus, his claim is denied. 38 C.F.R. §§ 3.303, 3.307, 3.309. ORDER Service connection for heart disease is denied. JANE E. SHARP Member, Board of Veterans' Appeals