Citation Nr: 0733707 Decision Date: 10/26/07 Archive Date: 11/07/07 DOCKET NO. 05-18 204 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for coronary artery disease, as secondary to the service-connected disability of diabetes type II with minimal cataracts. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L.B.Y., Associate Counsel INTRODUCTION The veteran served on active duty from July 1967 to March 1969, including service in the Republic of Vietnam. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT The competent medical evidence of record does not indicate that a medical nexus exists between the veteran's service- connected type II diabetes and his currently diagnosed coronary artery disease. CONCLUSION OF LAW The veteran's coronary artery disease is not proximately due or the result of his service-connected type II diabetes. 38 C.F.R. §3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, and 5126, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326 (2007). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence that the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-121 (2004) (Pelegrini II). This "fourth element" of the notice requirement comes from the language of 38 C.F.R. § 3.159(b)(1). Charles v. Principi, 16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). The United States Court of Appeals for Veterans Claims (Court) held in Pelegrini II that VCAA notice, as required by 38 U.S.C.A. § 5103(a) (West 2002), to the extent possible, must be provided to a claimant before the initial unfavorable RO decision on a claim for VA benefits. Pelegrini II, 18 Vet. App. 112, 119-20 (2004). See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In this case, the veteran was provided notice of the VCAA in November 2003, prior to the initial adjudication of his claim in the February 2004 rating decision at issue. The VCAA letter summarized the evidence needed to substantiate the claim and VA's duty to assist. It also specified the evidence that the veteran was expected to provide, including the information needed to obtain both his private and VA medical treatment records. In this way, the VCAA letter clearly satisfied the first three "elements" of the notice requirement. Additionally, the letter instructed the veteran to "send us any medical reports you have" and advised him of the following: "It's your responsibility to make sure that we receive all requested records that aren't in the possession of a Federal department or agency." (Emphasis in original). These statements satisfy the fourth "element" of the notice requirement, in that they informed the veteran that he could submit any and all evidence which was pertinent to his claim, and not merely that evidence requested by the RO. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that, upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. Additionally, this notice must state that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In the present appeal, the veteran received Dingess notice in March 2006 and February 2007, including as it relates to the downstream disability rating and effective date elements of his claim. The Board finds that all relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible. The evidence of record includes service medical records, service personnel records, VA medical records, and statements from the veteran and his representative. The veteran has not indicated that he has any further evidence to submit to VA, or which VA needs to obtain. There is no indication that there exists any additional evidence that has a bearing on this case that has not been obtained. The veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2007). In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, it finds that the development of the claim has been consistent with these provisions. Accordingly, the Board will proceed to a decision on the merits. Pertinent Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2007). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be: (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis With respect to Wallin element (1), medical evidence of a current disability, a competent diagnosis of coronary artery disease is of record. See VA Examination Report, April 2003. Accordingly, Wallin element (1) is satisfied for the claim. With respect to Wallin element (2), a service-connected disability, the veteran is currently service-connected for type II diabetes (at a 20 percent disability rating). See Rating Decision, March 2002. Wallin element (2) is accordingly satisfied for the claim. With respect to crucial Wallin element (3), the question presented, i.e. the relationship, if any, between the veteran's claimed disability and his service-connected diabetes, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). During an October 2003 VA examination of the veteran's heart, the VA doctor did not review the veteran's claims file but opined that in cases such as this veteran who has diabetic retinopathy and peripheral neuropathy shortly after the diagnosis of diabetes, it was at least as likely as not that the veteran's coronary artery disease is related to his diabetes mellitus. Upon review of the claims file, there is no medical evidence of any finding or diagnosis of diabetic retinopathy. In November 2003, the VA doctor who performed the October 2003 examination, was requested to review the veteran's claims file and furnish a medical opinion as to the relationship between the veteran's coronary artery disease and his diabetes. In a December 2003 e-mail response the VA doctor revised his previous opinion stating after reviewing the c- file, that while vascular complications of diabetes may precede the actual onset of diabetes, given the length of time between the coronary artery event and the diagnosis of diabetes especially in the absence of other vascular complications such as retinopathy, it is not as least as likely as not that this veteran's coronary artery disease was caused by diabetes. The Board notes that, in the February 2004 rating decision and in the April 2005 statement of the case, the RO erred in reporting that two different VA examiners offered the two contradictory nexus opinions discussed above. In fact, it was same VA doctor who gave both the October 2003 and the December 2003 nexus opinions, thus resolving any controversy as to the qualifications of the VA examiner. Here, it is clear that after review of the veteran's claim file, the VA examining doctor revised his October 2003 opinion in which he incorrectly indicated that the veteran had diabetic retinopathy. The VA physician found that the fact that the veteran did not have diabetic retinopathy to be a significant factor in his opinion and thus, changed his opinion to the negative. There is no competent medical evidence in the claims folder contrary to these findings. As was described in the Board's VCAA discussion above, the veteran has been accorded ample opportunity to secure and present medical nexus evidence in his favor. If the veteran felt that the December 2003 VA opinion was wrong, he could have submitted another medical nexus opinion; he did not do so. See 38 U.S.C.A. § 5107(a), supra. To the extent that the veteran himself believes that there is a medical nexus between his current coronary artery disease and his service-connected diabetes, it is now well established that lay persons without medical training, such as the veteran, are not competent to comment on medical matters such as cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159 (a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, Wallin element (3) has not been met, and the veteran's claim of entitlement to secondary service connection for coronary artery disease fails on this basis. In conclusion, for the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for coronary artery disease, as secondary to the service- connected disability of diabetes type II with minimal cataracts. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for coronary artery disease, as secondary to the service-connected disability of diabetes type II with minimal cataracts, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs