Petition for Writ of Certiorari — Latsch v. Shinseki

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Supreme Court, U.S.

FILED

1@-891

Jin thPFFICE OF THE CLERK

Supreme Court of the United States

ROBERT J. LATSCH,

Petitioner,

lrRIC K. SHINSEKI, Secretary OF VETERANS AFFAIRS,

Respondent

On Petition for Writ of Certiorart to the United

States Court of Appeals for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

WILLIAMS. GREENBERG, pro bono

Counsel of Record

McCarver & FENGuisn, LLP

Four Gateway Center

100 Mulberry Street

Newark, NJ 07102

973.622.4444

wereenberp@mccarter.com

Counsel for Petitioner

January 5, 201]

Becker Gallagher + Cincinnati, OH + Washington, D.C. - 800.890.5001

QUESTION PRESENTED

Whether injured soldiers who apply for veteran’s

disability benefits possess a property interest

protected by the Due Process Clause of the Fifth

Amendment and, if so, whether Petitioner’s due

process rights were violated when the Board of

Veterans Appeals requested that the Department of

Veteran Affair’s medical expert change the ultimate

outcome of his opinion from one in support ofa finding

of service connection for the service member's injuries

to one against a finding of service connection.

Whether Petitioner's rights to Equal Protection

under the Fifth Amendment were violated because the

Department of Veterans Affairs provides different and

less medical care and benefits to veterans of the Army

Reserve than it does to “regular” Army veterans.

PARTIES TO THE PROCEEDING

Pursuant to Rule 14.1(b), the following list

identifies all of the parties appearing here and before

the United States Court of Appeals for the Federal

Circuit:

The petitioner here and claimant-appellant below

is Robert J. Latsch.

The respondent here and respondent-appellee

below is Eric K. Shinseki, Secretary of Veterans

Affairs

TABLE OF CONTENTS

QUESTION PRESENTED ..

PARTIES TO THE PROCEEDING

TABLE OF CONTENTS

TABLE OF AUTHORITIES |

PETITION FOR A WRIT OF CERTIORART . . .

OPINIONS BELOW

STATEMENT OF JURISDICTION

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING TIE PETITION . ..

The DVA DEPRIVED MR. LATSCH OF HIS

RIGHT TO DUE PROCESS UNDER THE

FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION BY SECRETLY

ALTERING THE MEDICAL OPINION OF TIE

DVA EXPERT

. THE DVA’S DECISION VIOLATES EQUAL

PROTECTION UNDER THE LAWS BECAUSE

"T TREATS INJURED MEMBERS OF THI

RESERVE DIFFERENTLY THAN MEMBERS

OF THE REGULAR ARMY WITHOUT A

LEGITIMATE GOVERNMENT INTEREST .

CONCLUSION

APPENDIX

Appendix A:

Appendix B:

Appendix C:

Appendix D:

Appendix I:

Appendix F:

Appendix G:

Judgment, United States Court. of

Appeals for the Federal Circuit,

(October 7, 2010)

Judgment, United States Court of

Appeals for Veterans Claims,

[Al],

(October 23, 2009) ... te te

Memorandum Decision, United

States Court of Appeals for

Veterans Claims, [A7-A13}],

(September 30, 2009) ......... 5a

Order, Board of Veterans’

Appeals, [A14-A26}],

(February 19, 2008)

Letter from Donald N. Gill, M.D.,

|A46],

(Aumunt G. 2003) ............ Bf

Letter from Donald N. Gill, M.D.,

|A47],

URRY 2, DOPE) ne ce es 34a

Letter from Charles L. Miller,

M.D., I°.A.C.C., [A50},

COUR 20, OE oh ec es oe 36a

Appendix H:

Appendix I:

Appendix J:

Appendix K:

Appendix L:

Appendix M:

Appendix N:

Appendix O:

Letter from Charles L. Miller,

M.D., F.A.C.C., [A511],

(Aust Z, ZG)... 6. kc eee ss :

Letter from Don P. Speers, Jr.,

COL, MC, Commanding, |A52],

(August 21, 2006)

Letter from Alan Rozanski, MD,

Professor of Medicine, Columbia

University College of Physicians

and Surgeons, [A53},

(November 29, 2006)

Letter from Vincent T. Randazzo,

MD, |A54},

(January 29, 2007)

Letter from Narayana Swamy,

M.D., [A58],

(March 28, 2007)

Letter from Don P. Speers, Jr.,

COL, MC, Commanding, |A59},

(April 27, 2007)

Letter from Charles L. Miller,

M.D., F.A.C.C., [A60],

(mee EG, Bee) oo ew eee 51:

Letter from Vincent T. Randazzo,

MD, [A6]1],

(May 17, 2007) ..

Appendix P

Appendix Q:

Appendix R

Appendix 8:

Appendix T:

Appendix U:

Letter from Vincent T. Randazzo,

MD, [A65],

a” 2 ¢? rere 5a

Memorandum from David Lu,

MD to Board of Veterans’

Appeals, [A66-A67],

(August 30, 2007)

Letter from Carrie M. Johnson-

Clark, Director, Management and

Administration to Ross D.

Fletcher, M.D., [A68],

(September 13, 2007)

Memorandum from David Lu,

MD to Board of Veterans’

Appeals, [A69-A70],

(AUeuet GU, Beer) .........+, GSB

Letter from Charles L. Miller,

M.D... F.ACOC., ATi.

(November 20, 2007) ........ 67a

Memorandum from David Lu,

MD to Board of Veterans’

Appeals, [A80-A81],

(August 30, 2007)

Vill

TABLE OF AUTHORITIES

CASES

Atkins v. Parker,

472 U.S. 115 (1985)

Bd. of Regents of State Colls. v. Roth,

408 U.S. 564 (1972) ....

Bolling v. Sharpe,

347 U.S. 497 (1954)

Brannon v. Derwinskt,

1 Vet. App. 314 (Vet. App. 1991) .

Capellan v. Peake,

539 F.3d 1373 (Fed. Cir. 2008)

Crawford v. Pennsylvania,

No. 1:CV-03-693, 2005 U.S. Dist. LEXIS 43100

(M.D. Pa. Oct. 6, 2005), vacated tn part on other

grounds, 2006 U.S. Dist. LEXIS 3725 (M.D. Pa.

Jan. 19, 2006)

Cushman v. Shinseki,

576 F.3d 1290 (Fed Cir. 2009) ..... 8, 10, 11,

Gilbert v. Derwinski,

1 Vet. App. 49 (Vet. App. 1990) . .

Mathews v. Eldridge,

424 U.S. 319 (1976)

Reed v. Reed,

404 U.S. 71 (1971)

Vill

Rivera v. Peake,

No. 06-3518, 2008 U.S. App. Vet. Claims LEXIS

1242 (Vet. App. Oct. 15, 2008) ............. 19

Strickler v. Greene,

027 U.S. 263 (1999)

Town of Castle Rock, Colo. v. Gonzales,

545 U.S. 748 (2005)

Weinberger v. Weisenfeld,

420 U.S. 636 (1975)

CONSTITUTION

Const. amend. V

Const. amend. XIV

U.S.

US.

STATUTES

28 U.S.C. § 1254(1)

38 U.S.C. § 101

38 U.S.C. § 101 (23)-(24)

38 U.S.C. § 101 (23)(A)

38 U.S.C. § 101 (23)(B)

38 U.S.C. § 101 (24)

38 U.S.C. § 106(d)

38 U.S.C. § 1131 (2010)

38 U.S.C. § 1153 (2010)

38 U.S.C. § 3007(b)

38 US.C. § 7104(a)

38 U.S.C. § 7252(a) (2010)

REGULATIONS

38 C.F.R. § 3.6 (2008)

38 C.F.R. § 3.303(a) (2010)

38 C.F.R. § 3.303(b) (2010)

RULES

Fed. R. App. P. 4

PETITION FOR A WRIT OF CERTIORARI

Robert J. Latsch respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Federal Circuit in this case.

OPINIONS BELOW

The Board of Veterans’ Appeals reviewed the

determination of the Regional Office pursuant to 38

U.S.C. § 7104(a). That order is unreported, but can be

found in the appendix at App., infra, 16a-3la. On

February 19, 2008, Veterans Law Judge George R.

Senyk affirmed the decision of the Regional Office and

denied service connection. Jbid.

Mr. Latsch appealed the decision of the Board of

Veterans Appeals to the United States Court of

Appeals for Veterans Claims, which has exclusive

jurisdiction pursuant to 38 U.S.C. § 7252(a) (2010)

Judge Lawrence B. Hagel of the United States Court

of Appeals for Veterans Claims issued an unreported

opinion affirming the decision of the Board of

Veterans’ Appeals on September 30, 2009, and the

clerk of the Court entered judgment on October 23,

2009. App., infra, 3a-15a.

Mr. Latsch filed his Notice of Appeal to the United

States Court of Appeals for the Federal Circuit on

November 12, 2009, within the time limit established

by Fed. R. App. P. 4. The case was docketed on

January 27, 2010. The Federal Circuit Court of

Appeals entered an Order affirming without an

opinion on October 7, 2010. App., infra, la-2a.

STATEMENT OF JURISDICTION

The Federal Circuit entered judgment on October

7, 2010. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

For disability resulting from personal 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 the

active military, naval, or air service, during

other than a period of war, the United States

will pay to any veteran thus disabled and who

was discharged or released under conditions

other than dishonorable from the period of

service in which said injury or disease was

incurred, or preexisting injury or disease was

aggravated, compensation as provided in this

subchapter [38 USCS §§ 1131 et seq.], but no

compensation shall be paid if the disability is a

result of the veteran’s own willful misconduct or

abuse of alcohol or drugs.

38 U.S.C. § 1131 (2010).

The term “active military, naval, or air service”

includes--

(A) active duty;

(B) any period of active duty for training

during which the individual concerned was

disabled or died from a disease or injury

incurred or aggravated in line of duty; and

during which the individual concerned was

disabled or died--

(i) from an injury incurred or aggravated

in line of duty; or

(ii) from an acute myocardial infarction,

a cardiac arrest, or a cerebrovascular accident

occurring during such training.

38 U.S.C. § 101 (24).

The term “inactive duty training” means--

(A) duty (other than full-time duty)

prescribed for Reserves (including

commissioned officers of the Reserve Corps of

the Public Health Service) by the Secretary

concerned under section 206 of title 37 [37

USCS § 206] or any other provision of law;

(B) special additional duties authorized for

Reserves (including commissioned officers of the

Reserve Corps of the Public Health Service) by

an authority designated by the Secretary

concerned and performed by them on a

voluntary basis in connection with the

prescribed training or maintenance activities of

the units to which they are assigned; and

training) by a member of, or applicant for

membership (as defined in section 8140(g) of

title 5 [5 USCS § 8140(g)}) in, the Senior

Reserve Officers’ Training Corps prescribed

under chapter 103 of title 10 [10 USCS §§ 2101

et seq.].

In the case of a member of the National Guard

or Air National Guard of any State, such term

means duty (other than full-time duty) under

sections 316, 502, 503, 504, or 505 of title 32 [82

USCS §§ 316, 502, 503, 504, or 505], or the prior

corresponding provisions of law. Such term does

not include (1) work or study performed in

connection with correspondence courses, (11)

attendance at an educational institution in an

inactive status, or (ii) duty performed as a

temporary member of the Coast Guard Reserve

38% U.S.C. § 101(23)(B)

STATEMENT OF THE CASE

The Federal Circuit Court of Appeals held that Mr

Latsch’s rights under the Due Process Clause of the

Fifth Amendment had not been violated by the Board

of Veterans’ Appeals’ (“BVA”) request that the

Department of Veterans’ Affairs’ (““DVA”) medical!

expert change the ultimate conclusion of his report

from one that favored the granting of benefits to one

that formed the sole evidentiary basis for the denial of

benefits. This request to the medical expert was done

without notice to Mr. Latsch, without explanation by

the expert, without even a change in date from his

original report. More significantly, the altered report

served as the entire basis for the BVA and the Court of

Veterans’ Appeals’ denial of benefits

The Court of Veterans’ Appeals also rejected

arguments that Mr. Latsch’s request for benefits

should be treated no differently whether he was a

member of the Reserve Forces or was regular Army

Due Process Issues

The facts of this case as presented by Petitioner

were never disputed at any stage of the proceedings.

Mr. Latsch was a loyal and dedicated service

member, devoting over twenty years to his military

career. Mr. Latsch first served in the United States

Air Force in 1956 and was given a general discharge

under honorable conditions shortly thereafter. App.,

infra, 17a. He then served in the Army Reserve from

August 1975 through August 1994. /bid. At the time

he suffered his heart attack in February of 1987, Mr.

Latsch’s job on paper, according to his Military

Occupation Skill (“MOS”) designation, was “First

Cook,” but he was also doing the job of the mess

sergeant His additional (unrecognized) duties

included records inspections, planning, serving and

cleanup. Mr. Latsch was doing the work of two people,

and he was under enormous stress. He had to bring

paperwork home from his weekend assignment and

complete the work during the week, while he was not

physically present on base. Additionally, Mr. Latsch

was burdened by his recent reassignments to locations

which required substantial travel. He had been

assigned to a military installation in Pedricktown, NJ

Traveling to Pedricktown for his monthly weekend

training required a five-hour round-trip drive. The

location had no facilities for Mr. Latsch to stay

overnight on the weekend, so he was forced to make

the long commutes each day he reported for Reserve

training

Although he knew the extra work and long

commutes were putting too much stress on him, and

he likewise knew he was unlikely to receive any extra

recognition or a promotion for his extra work, Mr.

Latsch did not complain. Instead, he steadfastly

continued to serve his country as a good soldier.

On ‘Tuesday, February 3, 1987, Mr. Latsch suffered

a myocardial infarction (a “heart attack”), and was

taken to the hospital while at home reviewing

paperwork for his Reserve duties. Several days later,

he had bypass surgery. Jd. at 32a. After recovering

from surgery, Mr. Latsch resumed his Reserve duties

until 1994. Jd. at 17a.

On September 23, 2003, Mr. Latsch applied to the

IVA for disability compensation. The Newark, NJ,

Regional Office (“RO”) handled his case. /bid.

By the time his case reached the BVA in 2007, the

medical reports and opinions’ submitted

overwhelmingly concluded that his heart attack was

caused or aggravated by the stress of his military

service. Specifically, no less than five expert medical

opinions concluded that Mr. Latsch’s myocardial

infarction and heart condition were caused or

aggravated by the stress of his military service. 7d. at

32a-60a

Furthermore, Drs. Swamy and Lu, the DVA’s own

medical experts, concluded that it was “as likely as

not” that Mr. Latsch’s heart condition was caused by

the stress of his military duties. /d. at 47a, 59a.

Dissatisfied with the conclusions of its own experts,

which would have formed the basis for granting

disability benefits, the BVA wrote the head of Dr. Lu’s

department on September 13, 2007: “Please clarify the

following issue: Dr. Lu states that stress is as likely as

not a cause of CAD, but his opinion is largely

supportive of his conclusion that there is insufficient

evidence to show such an association.” /d. at 61a.

Dr. Lu’s opinion was revised, by whom it is not

certain, without explanation or even a change in the

date of the original report, August 30, 2007. Jd. at

63a-66a. Not only was the new report dated the same

as his old report, it was almost identical to his prior

opinion, and did not mention that a second request for

“clarification” had been made, or that this report was

a revised report. Appendix Q and Appendix S are the

two Dr. Lu reports dated August 30, 2007, but with

different conclusions.

Significantly, neither Mr. Latsch nor his counsel

were aware of the original report finding that his

condition was “as likely as not” caused or aggravated

by service condition, and were only given the revised

report. The original “as likely as not” conclusion would

have supported the granting of benefits to Petitioner

This is the critically important difference between

the two reports from Dr. Lu, both dated August 30,

2007: Dr. Lu, or some person from his office, deleted

the first report’s conclusion that the cardiac condition

was “as likely as not” caused by stress from the

military, and replaced it with the new assertion that it

was “unlikely” that stress caused the condition. Jd. at

65a. The record provides no explanation whatsoever

from Dr. Lu for contradicting the ultimate conclusion

of his prior opinion.

The record then continues in support of service

connection, with the November 20, 2007, report of Dr.

Miller, which concludes that “stress has played a

major role in |[Mr. Latsch’s] coronary artery disease.”

Id. at 67a.

The BVA denied Mr. Latsch’s appeal of the denial

of his benefits. /d. at 3la. It found that Mr. Latsch

had not submitted competent evidence that his heart

condition was service connected. Id. at 18a. The BVA

relied exclusively on the revised opinion of Dr. Lu.

The United States Court of Appeals for Veterans

Claims (“Veterans Court”) affirmed the Board’s

decision, again relying exclusively on the altered

report of Dr. Lu. 7d. at 14a-15a.

The Supreme Court has never decided the specific

issue of whether a veteran applying for disability

benefits possesses a property interest in those benefits

protected by the Due Process Clause of the Fifth

Amendment. The Federal Circuit has found that such

a right exists, but declined to extend its holding in

Cushman v. Shinsekt, 576 F.3d 1290 (Fed Cir. 2009),

to this case.

The alteration and concealment of the expert

testimony that formed the basis of the denial of

benefits would have, in its original form, formed the

basis of an award of disability benefits. Due process

has been violated because Mr. Latsch was not given a

fair opportunity to cross-examine and impeach Dr. Lu

and because Dr. Lu’s revised opinion was the

foundation of the expert testimony against service

connection and, as such, informed the whole of BVA’s

decision against an award of benefits.

Equal Protection Issues

The Court of Appeals also declined to treat Mr.

Latsch as it would an “active-duty” service member,

despite clear statutory and regulatory provisions

declaring it should. Notwithstanding that the DVA

could not point to a single statute, regulation or case

requiring Mr. Latsch to have been physically present

on a military base when his heart condition became

manifest in order to be eligible for benefits, its

rejection of his appeal without decision implicitly

mandated that this was a requirement for members of

the Reserve Forces. There is no foundation in law for

this determination. To the contrary, the law mandates

no such requirement, and in creating such artificial

barriers to a disability determination, the DVA has

violated the Equal Protection guarantees of the Fifth

Amendment. 38 U.S.C. § 101 (23)-(24).

REASONS FOR GRANTING THE PETITION

I. The DVA DEPRIVED MR. LATSCH OF HIS

RIGHT TO DUE PROCESS UNDER THE

FIFTH AMENDMENT TO THE UNITED

STATES CONSTITUTION BY SECRETLY

ALTERING THE MEDICAL OPINION OF THE

DVA EXPERT

The Due Process Clause of the Fifth Amendment

guarantees that “({nlo person ... shall be . . . deprived

of life, liberty, or property, without due process of law.”

This requirement guarantees a claimant notice and a

fair opportunity to be heard. The Supreme Court has

never resolved the issue of whether a_ veteran

applicant for disability benefits has a property interest

protected by the Due Process Clause of the Fifth

Amendment. See Atkins v. Parker, 472 U.S. 115, 128

(1985); Mathews v. Eldridge, 424 U.S. 319, 332 (1976)

(citing decisions holding that disability benefits

already granted are a protected property interest and

may not be discontinued without due process of law);

see also Town of Castle Rock, Colo. v. Gonzales, 545

U.S. 748, 756 (2005) (“To have a property interest 1n

a benefit, a person clearly must have more than an

abstract need or desire’ and ‘more than a unilateral

expectation of it. He must, instead, have a legitimate

claim of entitlement to it.” (quoting Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 577 (1972)).

Notwithstanding its decision below and the lack of

a Supreme Court precedent directly addressing the

issue, the Federal Circuit has held that the statutorily

created right to veterans benefits is a_ protected

property interest under the Fifth Amendment Due

Process Clause. Cushman v. Shinseki, 576 F.3d 1290,

1296 (Fed. Cir. 2009). In Cushman, a veteran

challenged the DVA’s denial of disability benefits for a

back and spinal injury he suffered while serving in the

Marines. Id. at 1292-95. He had originally received a

60% partial disability rating for his injury. /d. at

1292. Several years later, his back condition had

worsened and he became completely unable to work,

even in a sedentary position. The veteran applied for

benefits for total disability. Jd. at 1292-93. The DVA

denied his application. /bid. The BVA affirmed the

denial, citing (generally) evidence from the veteran’s

medical records and stating that it did not preclude

sedentary employment. Jd. at 1293.

Nearly two decades later, the veteran discovered

that the medical records that the BVA relied upon in

its decision denying benefits for total disability had

been supplemented without explanation. bid. The

original records contained the following statement:

“Is worse + must stop present type of work.” Jbid.

The altered records included the same statement, but

with an additional notation: “Is worse + must stop

present type of work, or at least [{/ bend [] stoop lift.’

(emphasis added brackets indicate illegible or stray

marks).” = Lbid. The DVA had relied on the

supplemented notation when it made its decision.

[bid.

This Court held that the initial determination of

the veteran’s total disability claim was “tainted by the

presence of an improperly altered document.” Id. at

1299. Furthermore, that determination “hald] been

subject to nothing but deferential review, on a record

that still contained the altered gocument.” J/bid.

Accordingly, the Court held that the veteran’s Due

Process rights had not been satisfied because he never

had a fair hearing on the merits of his disability claim

Ibid. Moreover, “{fJraudulent intent on the part of the

presenter of the false evidence is not required to find

a due process violation.” Jd. at 1300. Accordingly, the

Court vacated the decision below and remanded for de

novo determination of the total disability request on a

record without the altered medical documents. 7d. at

1302.

The facts here are remarkably similar. The BVA

requested a medical opinion to clarify the cause of Mr.

Latsch’s heart attack on February 6, 2007. The

request asked for a specific statement of the likelihood

that the coronary artery disease is causally related to

the stress Mr. Latsch was experiencing and asked for

comments on the medical opinions of Drs. Gill, Miller,

Speers, Rozanski, and Randazzo. On March 28, 2007,

Dr. Narayana Swamy provided an opinion in which he

stated, “[iJt is as likely as not that the veteran

suffered a heart attack from prolonged stress.” App.,

infra, 48a (emphasis added). Dr. Swamy did not

comment on the letters from Drs. Gill, Miller, Speers,

Rozanski, and Randazzo. Id. at 47a-48a.

An “as likely as not” determination provides the

necessary evidentiary proof under the liberal “benefit

of the doubt” standard of proof for granting benefits

under the laws governing DVA disability benefits

proceedings. At one end of the standard of proof

spectrum is the requirement in criminal proceedings

that guilt be established “beyond a reasonable doubt,”

followed by the less stringent “clear and convincing

evidence” standard, and the even less stringent

“preponderance of the evidence” used in most civil

disputes over money damages. Gilbert v. Derwinshi, 1

Vet. App. 49, 53-54 (Vet. App. 1990) At the farthest

end of the spectrum, with even a lesser burden than

“preponderance of the evidence,” is the statutory

standard of proof applicable to this case, named the

“benefit of the doubt” standard, for dealing with

veterans benefits. Jd. at 54.

As was explained in Gilbert, 1 Vet. App. at 53, a

veteran need only demonstrate that there is an

“approximate balance of positive and negative

evidence” in order to prevail, and the preponderance of

the evidence must be against the claim for benefits to

be denied. (quoting 38 U.S.C. § 3007(b)) (internal

quotation marks omitted).

As further explained in Gilbert: “This unique

standard of proof is in keeping with the high esteem in

which our nation holds those who have served in the

Armed Services. It is in recognition of our debt to our

veterans that society has through legislation taken

upon itself the risk of error. ...” Jd. at 54.

Accordingly, an “as likely as not” determination by

the DVA’s medical experts would prevent a showing by

the preponderance of the evidence against a

determination of benefits, and this is why the DVA

made such great and artificial efforts to eradicate such

a finding.

Dissatisfied with the contents of Dr. Swamy’s “as

likely as not” opinion, the BVA requested another

opinion on July 16, 2007. “A medical opinion [was]

sought to reconcile (with a detailed explanation of the

rationale) the conflicting opinions as to whether the

veteran’s coronary artery disease is causally related to

his service.”

Once again, the letter requested “a detailed medical

opinion as to the likelihood (i.e., very likely, as likely as

not, or highly unlikely) that the veteran’s currently

diagnosed coronary artery disease is causally related

to the ‘stress’ he contends was associated with his

periods of reserve duty.”

On August 30,:-2007, Dr. David Lu provided the

requested opinion. App., infra, 57a-60a. Dr. Lu

concluded “At this time, it is my opinion that

psychosocial stress is as likely as not to cause

coronary artery disease.” Jd. at 59a (emphasis added).

Dr. Lu’s conclusion about the likelihood that Mr.

Latsch’s stress caused his heart attack was the same

as Dr. Swamy’s: it was “as likely as not.” Jd. at 48a,

59a. But the BVA was not satisfied with Dr. Lu’s

conclusion either. The BVA demanded a modification

of the “bottom line” opinion offered by Dr. Lu. By

letter dated September 13, 2007, the BVA wrote to Dr.

Lu’s hospital:

The medical opinion provided on the above

veteran was determined to be confusing and

requires clarification. Please clarify the

following issue: Dr. Lu states that stress is as

likely as not a cause of [Mr. Latsch’s coronary

artery disease], but his opinion is largely

supportive of his conclusion that there is

insufficient evidence to show such an

association.

Id. at 61a.

The purpose of this correspondence is obvious.

After receiving two DVA medical opinions stating that

stress was “as likely as not” the cause of Mr. Latsch’s

heart attack (in addition to the 12 opinion letters from

the five medical experts which were submitted by Mr.

Latsch that all state his condition was substantially

caused by his service stress), the DVA was now

specifically requesting that the opinion be altered to

reflect a determination more helpful to its efforts to

deny Mr. Latsch benefits. Not surprisingly, Dr. Lu

complied. Jd. at 63a-66a. He issued a new opinion

with the same date and with no notation that it had

been reconsidered, altered, corrected or modified. Jbid.

The new opinion was identical to the old one, except

that its conclusion was now opposite to his first

conclusion, and stated: “At this time, it is my opinion

that psychosocial stress is unlikely to cause coronary

artery disease.” Jd. at 65a (emphasis added).

The BVA relied exclusively on Dr. Lu’s altered

opinion in its affirmation of the denial of benefits. /d.

at 29a-30a. Because the BVA ignored the medical

evidence submitted by Mr. Latsch which disagreed

with Dr. Lu’s “revised” opinion, the BVA held that the

preponderance of the evidence was against Mr.

Latsch’s claim, so the benefit of the doubt standard of

proof “did not apply.” Jd. at 29a-3la

However, even assuming, arguendo, that the Board

properly disregarded the opinions of Drs. Gill, Miller,

Speers, Rozanski, and Randazzo, the outcome would

have been different if it had not forced the alteration

of Dr. Lu’s opinion. Dr. Lu’s original opinion stated

that it was “as likely as not” (i.e., an approximate

balance of positive and negative evidence) that Mr.

Latsch’s stress caused his coronary artery disease and

heart attack. Jd. at 59a. The unaltered opinion by

itself would have required a decision in favor of the

veteran. See Capellan v. Peake, 539 F.3d 1373, 1381

(Fed. Cir. 2008) (“The ‘benefit of the doubt’ statute, 38

U.S.C. §5107(b), and the analogous ‘reasonable doubt’

regulation, 38 C.F.R. § 3.102, apply to all material

facts relating to aclaim....”). Like the veteran in

Cushman, Mr. Latsch’s case was improperly tainted by

altered evidence.

A determination that the concealment and

alteration of expert testimony violates Due Process can

be found in the analogous context of manipulation of a

State’s witness in criminal proceedings. For example,

in Crawford v. Pennsylvania, No. 1:CV-03-693, 2005

U.S. Dist. LEXIS 43100 (M.D. Pa. Oct. 6, 2005),

vacated in part on other grounds, 2006 U.S. Dist.

LEXIS 3725 (M.D. Pa. Jan. 19, 2006), the plaintiff

brought an action against the State for his wrongful

imprisonment. One of his claims were for violation of

his due process rights on account of information that

was redacted from the expert report offered at trial.

The Court denied summary judgment seeking

dismissal of his claim stating:

In short, the alteration and concealment of the

facts that formed the basis for the testimony

regarding the only physical evidence implicating

Crawford for this crime not only tend to be

exculpatory under Brady, they support

Plaintiff's claim that he was denied a fair trial,

and thus was denied liberty without due process

of law. The due process problem is not limited

to the fact that Crawford was not given the

opportunity to fairly cross-examine and impeach

the Commonwealth’s witnesses; because the lab

report formed the foundation of the expert

testimony, it informed the whole of the

Commonwealth's case. As such, the original lab

note, which may demonstrate to a jury the holes

in the Commonwealth’s case, undermines the

confidence in the outcome of the criminal! trial.

Id. at *33 (citing Strickler v. Greene, 527 U.S. 263, 280-

81 (1999)).

If. THE DVA’S DECISION ViOLATES EQUAL

PROTECTION UNDER THE LAWS BECAUSE

IT TREATS INJURED MEMBERS OF THE

RESERVE DIFFERENTLY THAN MEMBERS

OF THE REGULAR ARMY WITHOUT A

LEGITIMATE GOVERNMENT INTEREST

The United States of America has had an all

volunteer military since the end of the Vietnam War.

Since September 11, 2001, our nation has used the

Reserve Forces in an unprecedented manner, sending

them overseas to fight multiple wars, and subjecting

them to multiple tours. Nevertheless, the stigma of

being a member of the Reserve exists to this day, with

such service members often receiving less or inferior

medical treatment, equipment and benefits. If there

ever was, there is no longer any legitimate justification

for this “second-class” treatment of members of the

Army Reserve. The decisions below, however, strained

unnaturally to find a way to do just that, contrary to

justice and the modern statutory framework drafted by

our legislature.

Although it was undisputed below that the DVA

could point to no statute, regulation or precedent

requiring Mr. Latsch’s heart attack to have occurred

on a military base in order to qualify him for veterans

disability benefits, the Court of Appeals rejection of his

arguments on this point implicitly require such an

unnecessary and unprescribed hurdle.

Equal protection of the law means the government

cannot provide dissimilar treatment to those who are

“similarly situated.” Reed v. Reed, 404 U.S. 71, 77

(1971) (interpreting the Equal Protection Clause of the

Fourteenth Amendment). The Fourteenth

Amendment’s guarantee, however, applies only to the

States. The Supreme Court has held, however, that

there is also an equal protection guarantee within the

Due Process Clause of the Fifth Amendment. Bolling

v. Sharpe, 347 U.S. 497, 499 (1954). The approach to

Fifth Amendment equal protection claims is precisely

the same as equal protection claims under the

Fourteenth Amendment. Weinberger v. Weisenfeld,

420 U.S. 636, 638 n.2 (1975).

In the present matter, the statutory framework

provided by Congress, if it was applied as written,

would have resulted in different treatment for Mr.

Latsch whether he was a member of the Army Reserve

or “regular” Army.

The BVA and the Court of Veterans Appeals

(collectively referred to as the Veterans Court) both

concluded that Mr. Latsch was not on active duty and,

therefore, not eligible for benefits, notwithstanding

that they also found that his cardiac arrest and

subsequent cardiac condition became first manifest in

1987, a time when he was either active duty for

training or inactive duty for training.

The DVA’s disability benefits statute provides that

“(flor a disability resulting from personal injury

suffered . .. or for aggravation of a preexisting injury

suffered . .. in the active military, naval or air service

. the United States will pay any veteran thus

disabled . . . compensation as provided in this

subchapter.” 38 U.S.C. § 1131 (2010).

Furthermore, 38 U.S.C. § 101 provides that a

service member who is in a period of inactive training

is considered to be on active duty under certain

circumstances. Specifically, 38 U.S.C. § 101 (24)

states:

(24) The term “active military, naval, or air

service” includes--

(A) active duty;

(B) any period of active duty for training

during which the individual concerned was

disabled or died from a disease or injury

incurred or aggravates in line of duty; and

during which the individual concerned

was disabled or died--

(i) from an injury incurred or aggravated

in line of duty; or

Gi) from an acute’= myocardial

infarction, a cardiac arrest, or a

cerebrovascular accident occurring

during such training.

(emphasis added).

As such, the plain wording of the statute provides

that service connection is available for injuries

sustained during inactive duty for training under

limited circumstances, including when a_ veteran

suffers a cardiac arrest during that inactive training

period. Rivera v. Peake, No. 06-3518, 2008 U.S. App.

Vet. Claims LEXIS 1242, *3-4 (Vet. App. Oct. 15,

2008); 38 C.F.R. § 3.6 (2008).

It is undisputed that Mr. Latsch was in the Army

Reserve at the time of his myocardial infarction in

1987, and that after his heart attack, Mr. Latsch’s

cardiac disease was diagnosed and manifested itself

throughout the remainder of his military career until

it ultimately caused his discharge.

On this issue, the Veterans Court explained in a

footnote that

There are two types of reserve training, active

and inactive. Active duty for training means

full time duty performed by reservists or

National Guard members for training purposes

under orders for active duty. 38 U.S.C.

§§ 101(22)(B), (C). Inactive duty for training

means non-full time duty for reservists as

prescribed by the Secretary of each military

department (commonly in the form of weekend

drills and two-week yearly training periods). 38

U.S.C. § 101(23)(A).

App., infra, lla n.3.

The Veterans Court concluded that

Because members of the reserve components of

the armed forces, except when called to federal

service, involve periods of non-active duty, there

is special consideration for determining when a

claimed disease or injury Is service connected.

There must be evidence that the disease or

injury is directly related to training. For Mr.

Latsch, who served in the Army Reserve, to

establish that his coronary artery disease is

service connected, there must be evidence

showing that he was disabled by disease or

injury incurred in or aggravated while he was

performing active or inactive duty for training.

38 U.S.C. §§ 101(22), (24), 1110. Thus, his heart

attack is simply evidence that he suffered from

coronary artery disease, and he must present

evidence that the coronary artery disease was

incurred in or aggravated during training.

Id. at 10a-1lla.

The Veterans Court’s conclusions that, as a

reservist Mr. Latsch is under a heavier legal burden,

is a legally erroneous interpretation of the statutory

and regulatory provisions pertaining to a veteran’s

ability to establish service connection and a violation

of Equal Protection under the laws as guaranteed by

the Fifth Amendment.

The law cited above makes clear that in the specific

scenario of a cardiac arrest during a period of inactive

training, the law treats Mr. Latsch no different than

any other active duty soldier. Once it was shown that

his heart attack occurred during a period of inactive

duty for training, the burden thereafter was merely

that “a particular injury or disease resulting in

disability was incurred coincident with service in the

Armed Forces.” 38 C.F.R. § 3.303(a) (2010) (emphasis

added).

The Veterans Court’s assertion that Mr. Latsch’s

heart attack is “simply evidence that he suffered from

coronary artery disease,” and that he must present

additional evidence that his disease was aggravated

during training, is also an erroneous interpretation of

the statutory and regulatory provisions at play in this

case. Once the diagnosis of myocardial infarction is

established during active service, later manifestations

of cardiac disease should be service connected unless

“clearly attributable to intervening causes.” 38 C.F_R.

§ 3.303(b) (2010); see Brannon v. Derwinski, 1 Vet.

App. 314 (Vet. App. 1991).

The Veterans Court’s erroneous interpretation of

the law saddles Mr. Latsch with a burden of proof far

greater than that actually provided in the statutory

and regulatory framework, far greater than is imposed

upon “regular” Army service members and, as such, is

a violation of his mghts under the Fifth Amendment’s

guarantee of Equal Protection under the law.

There can be no disputing that Mr. Latsch suffered

a myocardial infarction during a period of inactive

duty training.

“Inactive duty training” includes: “special

additional duties authorized for Reserves ... by an

authority designated by the Secretary concerned and

performed by them on a voluntary basis in connection

with the prescribed training or maintenance activities

of the units to which they are assigned.” 38 U.S.C.

§ 101(23)(B) (2010).

At the time of his heart attack, Mr. Latsch was

responsible for preparing meals for hundreds of

soldiers. His double duties required him not only to

cook, but to plan and order inventory and food to

prepare for future meals and to complete such mess

hall paperwork during the weck. The might Mr.

Latsch had his heart attack, he had been working on

his mess hall paperwork.

He was performing his military duties despite the

fact that he was not physically on base.

The Secretary argued below and, the Court of

Appeals accepted, that because Congress enacted 38

U.S.C. § 106(d), which expressly designates travel to

and from inactive duty training as “active military,

naval or air service,” it must mean that, after Mr.

Latsch finished traveling from his weekend service, he

was not active again until he started to travel to a

period of inactive duty service. Appellee Br. at 23-24.

However, this logic misses the point: the legal

question is not whether Mr. Latsch was continuously

in active “military, naval or air service” status from

the time of his weekend deployment until his heart

attack. The legal question is whether the statutory

definition of “active military, naval or air service”

includes all time a Reservist spends performing his

military duties.

When Congress enacted 38 U.S.C. § 106(d), it

established that “active military, naval or air service”

need not be limited to times when a Reservist is on

base, or even times when a Reservist is performing his

military duties. Instead, the enactment of § 106(d)

shows that “active military, naval or air” service

should be construed liberally. Mr. Latsch submits

that, because he was performing his military duties at

the time of his heart attack, he was in a period of

inactive duty training, pursuant to § 101(23)(B), and

thus qualifies for benefits.

Even assuming the Veterans Court was correct to

hold that Mr. Latsch was not tn inactive duty service

status at the time of his heart attack, it ignored the

fact that Mr. Latsch’s evidence stated that his heart

attack was caused by his military duties. It was error

to hold that a condition must manifesv itself during

inactive duty training for that condition to have been

caused by the inactive duty training.

Furthermore, the Veterans Court also ignored the

possibility that Mr. Latsch’s inactive duty service

aggravated his coronary artery disease (thus triggering

a heart attack). “A preexisting injury or disease will

be considered to have been aggravated by active

military, naval, or air service, where there is an

increase in disability during such service, unless there

is a specific finding that the increase in disability is

due to the natural progress of the disease.” 38 U.S.C.

§ 1153 (2010). There was no such finding here.

Immediate review of the foregoing issues is

necessary to resolve these important federal questions

at a time of war.

CONCLUSION

For these reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

WILLIAM S. GREENBERG, pro bono

Counsel of Record

McCCARTER & ENGLISH, LLP

Four Gateway Center

100 Mulberry Street

Newark, NJ 07102

973.622.4444

wegreenberg@mccarter.com

Counsel for Petitioner

January 5, 2011

APPENDIX

TABLE OF CONTENTS

Appendix A: Judgment, United States Court of

Appeals for the Federal Circuit,

(October 7, 2010)

Appendix B: Judgment, United States Court of

Appeals for Veterans Claims,

[All],

(October 23, Z0U9) ........... 38

Appendix C: Memorandum Decision, United

States Court of Appeals for

Veterans Claims, [A7-A13],

(September 30, 2009)

Appendix D: Order, Board of Veterans’

Appeals, {[A14-A26],

(February 19, 2008)

Appendix E: Letter from Donald N. Gill, M.D.,

|A46),

(August 6, 2003) ............ 32a

Appendix F: Letter from Donald N. Gill, M.D.,

[A47],

(May 26, 2004) ........+.... Ha

Appendix G: Letter from Charles L. Miller,

M.D., F.A.C.C., [A50],

CUT 2T, GOOD oa cc tee os :

Appendix H:

Appendix I:

Appendix J:

Appendix K:

Appendix L:

Appendix M:

Appendix N:

Appendix O:

Letter from Charles L. Miller,

M.D., F.A.C.C., [A51],

(August 2, 2006)

Letter from Don P. Speers, Jr.,

COL, MC, Commanding, [A52],

(August 21, 2006)

Letter from Alan Rozanski, MD,

Professor of Medicine, Columbia

University College of Physicians

and Surgeons, [A53],

(November 29, 2006)

Letter from Vincent T. Randazzo,

MD, [A54}],

(January 29, 2007)

Letter from Narayana Swamy,

M.D., |A58},

(March 28, 2007)

Letter from Don P. Speers, Jr.,

COL, MC, Commanding, [A59],

(April 27, 2007)

Letter from Charles L. Miller,

M.D., F.A.C.C., [A60],

(Meee 1D, BOOT) oc see ee eee 5la

Letter from Vincent T. Randazzo,

MD, [A61],

(May 17, 2007) ............. Bae

ill

Appendix P: Letter from Vincent T. Randazzo,

MD, [A65],

(July 6, 2007) .......

Appendix Q: Memorandum from David Lu,

MD to Board of Veterans’

Appeals, [A66-A67],

(August 30, 2007)

Appendix R: Letter from Carrie M. Johnson

Clark, Director, Management and

Administration to Ross D

Fletcher, M.D., [A68],

(September 13, 2007) . .. bla

Appendix S: Memorandum from David Lu,

MD to Board of Veterans’

Appeals, [A69-A70],

(August 30, 2007) . . 63a

Appendix T: Letter from Charles L. Miller,

M.D., F.A.C.C., [A71],

(November 20, 2007) .. .. 67a

Appendix U: Memorandum from David Lu,

MD to Board of Veterans’

Appeals, [A80-A8 1],

(August 30, 2007)... 69a

APPENDIX A

NOTE: This disposition is nonprecedential.

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

No. 2010-7042

[Filed October 7, 2010]

ROBERT J. LATSCH,

Claimant-Appellant,

ERIC K. SHINSEKI,

Secretary of Veterans Affairs,

Respondent-Appellee.

Appeal from the United States Court of Appeals for

Veterans Claims in case no. 08-1484, Judge Lawrence

B. Hagel.

JUDGMENT

MICHAEL P. PASQUALE, McCarter & English, LLP,

of Newark, New Jersey, argued for claimant-appellant.

Tara K. Hogan, Trial Attorney, Commercial

Litigation Branch, Civil Division, United States

Department of Justice, of Washington, DC, argued for

respondent-appellee. With her on the brief were TONY

WEST, Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and MARTIN F. HOCKEY, JR.,

Assistant Director. Of counsel was ROBERT C. BIGLER,

Trial Attorney. Of counsel on the brief were MICHAEL

J. TIMINSKI, Deputy Assistant General Counsel, and

CHRISTA A. SHRIBER, Attorney, Office of the General

Counsel, United States Department of Veterans

Affairs, of Washington, DC.

THIS CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

PER CURIAM (GAJARSA, LINN, and Prost, Circuit

Judges).

AFFIRMED. See Fed. Cir. R. 36.

ENTERED BY ORDER OF THE COURT

/s/Jan Horbaly/S.W.

Jan Horbaly

OCT 07 2010

Date

ISSUED AS A MANDATE: Nov 29 2010

APPENDIX B

Not Published

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

No: 08-1484

[Filed October 23, 2009]

ROBERT J. LATSCH.

APPELLANT,

ERIC K. SHINSEKI, SECRETARY OF

VETERANS AFFAIRS,

APPELLEE.

JUDGMENT

The Court has issued a decision jn this case. The

time allowed for motions under Rule 35 of the Court:

Rules of Practice and Procedure has expired

Under Rule 36, judgment is entered this date

Dated: October 23, 2009 FOR THE COURT

NORMAN Y. HERRING

Clerk of the Court

By: /s/ Abie M Negala

Deputy Clerk

Copies ke

Allen E. Falk, Esq

VA General Counsel (027

APPENDIX C

Designated for electronic publication only

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

No. 08-1484

[Filed September 30, 2009]

ROBERT J. LATSCH,

APPELLANT.

ERIC K. SHINSEKI, SECRETARY OF

VETERANS AFFAIRS,

APPELLEE.

Before HAGEL, Judge

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

HAGEL, Judge: Robert J. Latsch appeals through

counsel a February 19, 2008, Board of Veterans’

Appeals (Board) decision finding that he was not

entitled to VA benefits for coronary artery disease. The

Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a)

and 7266(a) to review the February 2008 decision, and

a single judge may conduct that review. See Frankel v.

Derwinski, 1 Vet.App. 23, 25-26 (1990). Because the

Board did not err in finding that there was no

probative evidence linking Mr. Latsch’s coronary

artery disease to a period of active duty for training,

the Court will affirm the February 19, 2008, Board

decision.

I. FACTS

Mr. Latsch served on active duty in the U.S. Army

during September and October1956. He also served in

the Army Reserves with periodic active duty for

training from August 1975 to August 1994. He suffered

a myocardial infarction’ in February 1987, during a

period of time when he was not on active duty status

for training. (R. at 5).

In September 2003, Mr. Latsch applied for

entitlement to VA benefits for coronary artery disease.

In March 2005, a VA regional office denied his claim,

after finding no evidence that his heart disease was

incurred in or aggravated by active duty training.

Between 2005 and 2007, Mr. Latch submitted a

series of expert opinions linking his 1987 myocardial

infarction to his stress level at the time. The first of

these opinions came from Dr. Gill, a private physician,

who opined that “ongoing stresses related to [Mr.

Myocarditis is an inflamation of the muscular walls of the heart.

DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1240 (31st Ed.

2007) (hereinafter DORLAND’S). In common parlance, a myocardial

infarction is a heart attack. See Google Health

(www.google.com/health/ref/Heart+atack).

Latch’s] army reser 7e, work, [and] travel time were

major factors in hi. ultimate heart attack.” Record (R.)

at 447. A second opinion from Dr. Gill suggested that

“ongoing stresses greatly contributed to Mr. Latsch’s

subsequent heart attack.” R. at 472. Mr. Latsch also

submitted a July 2005 opinion from Dr. Charles Miller

suggesting that stress must be “considered a

substantial contributing cause” of Mr. Latsch’s

coronary artery disease. R. at 27. In November 2006,

Dr. Alan Rozanski of Columbia University opined that

psychological stress has been definitively correlated to

coronary heart disease.

In August 2007, the regional office provided a VA

physical examination conducted by Dr. David Lu. Dr.

Lu was asked whether Mr. Latsch’s currently

diagnosed coronary artery disease was causally related

to reserve duty stress. Dr. Lu reported that there is

“insufficient evidence” to describe psychological stress

as a “significant risk factor” for heart disease. R. at

165. He listed hypertension, diabetes, smoking,

hypercholesterolemia, family history, age, and male

sex as commonly accepted risk factors. Finally, Dr. Lu

opined that, even if stress were a factor in Mr. Latsch’s

heart attack, its “role is minor in comparison to [Mr.

Latsch’s] other coronary risk factors, including

smoking, family history, and hypercholesterolemia and

hypertension.” R. at 165.

In Apml 2007, Colonel Don Speers, M.D., U.S.

Army, submitted a letter disagreeing with the August

2007 VA examiner’s opinion and suggesting that stress

could aggravate coronary artery disease. In May 2007,

Mr. Latsch’s private physician, Dr. Miller, again

opined that Mr. Latch’s February 1987 myocardial

infarction was substantially related to work stress. In

July 2007, Dr. Vincent Randazzo submitted a letter

opinion providing that stress related to Mr. Latsch’s

Army Reserve duty contributed to his cardiac

problems.

In February 2008, the Board issued the decision on

appeal, denying Mr. Latsch entitlement to service

connection for coronary artery disease. The Board

reviewed Mr. Latsch’s medical history and the

opinions of the various cardiologists linking stress to

an increased risk of heart disease. The Board found

that, because Mr. Latsch’s heart attack did not occur

during a period of active duty for training, he was only

entitled to VA benefits if his coronary artery disease

was aggravated during training. The Board found that

the medical opinions of Drs. Gill, Miller, Rozanski,

Randazzo, and Speers were less probative than Dr.

Lu’s opinion in determining whether the disease was

aggravated during active duty because none discussed

Mr. lLatsch’s history of hyperlipidemia* and

hypertension or the stress and physical exertion

related to his civilian job. The Board concluded that

the VA examiner’s opinion was more probative because

he identified several commonly accepted risk factors

for coronary artery disease in Mr. Latsch’s medical

record and noted that there was insufficient evidence

to link stress to coronary artery disease. The Board

also concluded that the VA examiner possessed

sufficient credentials to provide an opinion as to the

cause of Mr. Latsch’s coronary artery disease because

he had a speciality certification in internal medicine

and a subspeciality certification in cardiovascular

: Hyperlipidemia is defined as “elevated concentrations of any or

all or the lipids in the plasma.” DORLAND’S 903.

disease. After discounting the probative value of Mr.

Latsch’s experts’ opinions, the Board found that there

was “no medical evidence in the record” actually

linking Mr. Latch’s stress to aggravation of coronary

artery disease during a period of qualifying service. R.

at 12.

On appeal, Mr. Latsch argues that the Board erred

in assigning more probative value to the VA

examiner's opinion than it assigned to the opinion of

Dr. Rozanski, who he described as an “eminent

specialist.” Appellant’s Brief (Br.) at 5. He also argues

that there was “no plausible basis in the record”

supporting the Board’s finding that his coronary artery

disease was not caused or aggravated by military

service. Appellant’s Br. at 6. Mr. Latsch contends that

the Board decision should be reversed because there

was an approximate balance of positive and negative

evidence on his underlying claim. Appellant’s Br. at 6.

He asserts that the Board failed to account for a

medical opinion from a VA physician that stress can

cause coronary artery disease. Appellant’s Br. at 8. Mr.

Latsch argues that the Court should remand his claim

to the Board for consideration by a _ panel of

“appropriate medical experts.” Appellant’s Br. at 8.

In response, the Secretary asserts that the Court

should find that there was a “plausible basis” in the

record for the Board’s decision. Secretary’s Br. at 4.

The Secretary contends that it was not error for the

Board to find that the VA examiner was competent to

provide an opinion and that this opinion was the most

probative evidence as to the cause of Mr. Latsch’s

coronary artery disease. Secretary’s Br. at 4. The

Secretary argues that the benefit of the doubt doctrine

does not apply here because the evidence was not in

10a

equipoise. Secretary's Br. at 6. Finally, the Secretary

asserts that there is no basis upon with the Court

could vacate and remand the Board’s decision.

Secretary's Br. at 7.

li. ANALYSIS

In rendering its decision, the Board is required to

provide a written statement of the reasons or bases for

its “findings and conclusions|} on all material issues of

fact and law presented on the record.” 38 U.S.C.

§ 7104(d\(1). The statement must be adequate to

enable a claimant to understand the precise basis for

the Board’s decision, as well as to facilitate review in

this Court. See Gilbert v. Derwinski, 1 Vet.App. 49, 57

(1990). To comply with this requirement, the Board

must analyze the credibility and probative value of the

evidence, account for the evidence that it finds to be

persuasive or unpersuasive, and provide the reasons

for its rejection of any matcrial evidence favorable to

the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506

(1995), affd per curiam 78 F.3d 604 (Fed. Cir. 1996)

(table). The Board’s assessment of the credibility and

weight to be given to evidence is a finding of fact that

the Court review under the “clearly erroneous”

standard of review. 38 U.S.C. § 7261(a\(4); Wood uv.

Derwinski, 1 Vet.App. 190, 193 (1991); Gilbert, 1

Vet.App. at 52.

Because members of the reserve components of the

armed forces, except when called to federal service,

involve periods of non-active duty, there is special

consideration for determining when a claimed disease

or injury 1s service connected. There must be evidence

that the disease or injury is directly related to

lla

training.’ For Mr. Latsch, who served in the Army

Reserve, to establish that his coronary artery disease

is service connected, there must be evidence showing

that he was disabled by disease or injury incurred in or

aggravated while he was performing active or inactive

duty for training. 38 U.S.C. §§ 101(22), (24), 1110.

Thus, his heart attack is simply evidence that he

suffered from coronary artery disease, and he must

present evidence that the coronary artery disease was

incurred in or aggravated during training.

Mr. Latsch argues that the Board lacked a

plausible basis in the record to find that “no medical

evidence in the record shows or suggests that the

[coronary artery disease] had its onset or . . . increased

in severity during a period of [active duty training].” R.

at 12. Mr. Latsch contends that the Board failed to

account for two statements from his private physician,

Dr. Gill, when it found that there was “no evidence”

directly linking his coronary artery disease to active

duty training. Appellant’s Br. at 6. In the first

statement in question, Dr. Gill opined that “ongoing

stresses related to [Mr. Latch’s] army reserve, work,

jand] travel time were major factors in his ultimate

heart attack.” R. at 447. In the second statement, Dr.

Gill again opined that “ongoing stresses greatly

contributed to Mr. Latsch’s subsequent heart attack.”

3 There are two types of reserve training, active and inactive.

Active duty for training means full time duty performed by

reservists or National Guard members for training purposes

under orders for active duty. 38 U.S.C. §§ 101(22)(B), (C). Inactive

duty for training means non-full time duty for reservists as

prescribed by the Secretary of each military department

(commonly in the form of weekend drills and two-week yearly

training periods). 38 U.S.C. § 101(23){A).

12a

R. at 472. Mr. Latsch’s argument that the Board did

not account for Dr. Gill’s opinions is not supported by

the record. The Board considered Dr. Gill’s opinions,

but determined that they were of minimal probative

value because the doctor did not discuss Mr. Latsch’s

“history of hyperlipidemia and hypertension, or the

stress and physical exertion associated with [his]

civilian job.” R. at 11.

The issue here is not whether Mr. Latsch had

coronary artery disease. Because all the physicians

agree that he does have coronary artery disease, the

issue is whether Mr. Latch’s coronary artery disease

was incurred or aggravated during active or inactive

duty for training. The Board is permitted to analyze

the credibility and probative value of the evidence

before it, which is what it did in this case. See Caluza,

7 Vet.App. at 506. After the Board discounted Dr.

Gill’s and several other physicians’ opinions, no

probative evidence remained lhnking Mr. Latsch’s

coronary artery disease to his active duty training.

Thus, the Court finds that there is a probable basis in

the record for the Board’s statement that no medical

evidence supported Mr. Latsch’s claim.

To the extent that Mr. Latsch argues that the

Board erred by favoring the VA examiner’s opinion

over that of “an eminent specialist,” the Board is

permitted to favor one expert’s opinion over another

provided that it gives an adequate statement of its

reasons and bases for so doing. See Simon uv.

Derwinski, 2 Vet.App. 621, 622 (1992). Thus, the

question is not which expert is “more qualified,” but

whether a particular expert was competent to provide

an opinion. The credibility of an expert is a finding of

fact to be made by the Board. See Layno v. Brown, 6

l3a

Vet.App. 465, 469 (1994) (finding that the weight and

credibility of evidence “is a factual determination going

to the probative value of the evidence to be made after

the evidence has been admitted”); see also Washington

uv. Nicholson, 19 Vet.App. 362 (2006) (holding that it is

the Board’s responsibility to determine the appropriate

weight to be given to evidence). Here, the Board found

that Dr. Lu was qualified to opine as to the etiology of

Mr. Latsch’s coronary artery disease and as to the

likelahood that it was caused by active or inactive duty

for training. R. at 12. Mr. Latsch offers no evidence to

rebut the finding that Dr. Lu is qualified; instead he

asserts that other specialists had better credentials.

Because Mr. Latsch has not asserted that Dr. Lu was

not qualified, the Court finds that Mr. Latsch failed to

carry his burden of establishing that the Board was

clearly erroneous in assessing the credibility of Dr.

Lu’s opinion. See Layno, 6 Vet.App. at 469; Wood, 1

Vet.App. at 93.

Mr. Latsch asserts that the Board failed to account

for probative medical evidence because it did not

address a March 2007 VA examiner’s opinion that

“(s]tress can precipitate myocardial infarction.” R. at

161. Mr. Latsch takes the physician’s statement out of

context. In full, the March 2007 VA examiner stated

that “[s]tress can precipitate myocardial infarction.

However whether prolonged stress alone can produce

coronary artery disease in a person without other risk

factors is not well established.” R. at 161. The VA

physician further opined that “it is unlikely that the

veteran’s currently diagnosed coronary artery disease

is causally related to the stress during his period of

reserve duty.” R. at 161. Viewed in context, the March

2007 VA examiner’s opinion is not favorable medical

l4a

evidence, and the Board did not err in failing to

account for the opinion. See Caluza, 7 Vet.App. at 506.

Finally, Mr. Latsch contends that the Board erred

in failing to apply the benefit of the doubt doctrine

because there was an approximate balance of positive

and negative evidence relating his heart disease to

service. Under 38 U.S.C. § 5107(b), “when there is an

approximate balance of positive and negative evidence

regarding any issue material to the determination of a

matter, the Secretary shall give the benefit of the

doubt to the claimant.” The determination that there

is an approximate balance of positive and negative

evidence is a finding of fact by the Board. Hayes v.

Brown, 5 Vet.App. 60, 69 (1993). Where the

preponderance of the evidence is against an appellant’s

claims, “the benefit of the doubt doctrine does not

apply.” Schoolman v. West,12 Vet.App. 307, 311 (1999).

Here, the Board found that there was no probative

evidence demonstrating that Mr. Latsch’s coronary

artery disease was incurred or aggravated during a

period of active duty training. R. at 12. Additionally,

the Board determined that the most probative

etiological evidence was the July 2005 VA examiner’s

opinion that Mr. Latsch’s coronary artery disease could

be attributed to his hypertension and

hypercholesterolemia, and not to active duty stress. R.

at 12. Because the Board found that the

preponderance of the evidence was against Mr.

Latsch’s claim, the Court finds that the Board did not

err in failing to apply the benefit of the doubt doctrine.

Schoolman, 12 Vet.App. at 311.

Because the Court finds no error by the Board, Mr.

Latsch’s argument that his claim should be addressed

by a panel of experts will not be addressed. Based on

L5a

the above discussion, the Court will affirm the Board’s

decision.

Il. CONCLUSION

On consideration of the foregoing, the February 19,

2008, Board decision is AFFIRMED.

DATED: September 30, 2009

Copies to:

Allen E. Falk, Esq.

VA General Counsel (027)

APPENDIX D

BOARD OF VETERANS’ APPEALS

DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, DC 20420

DOCKET NO. 05-15 601

+ 28 250 142

[Filed February 19, 2008]

IN THE APPEAL OF _ )

ROBERT J. LATSCH

On appeal from the Department of Veterans Affairs

Regional Office in Newark, New Jersey

THE ISSUE

Entitlement to service connection for coronary artery

disease (CAD).

REPRESENTATION

Appellant represented by: New Jersey Department

of Military and

Veterans Affairs

17a

WITNESS AT HEARINGS ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. R. Fletcher, Counsel]

INTRODUCTION

The appellant is a veteran who served on active duty

from September 6, 1956 to October 16, 1956.

Thereafter, he had service in the Army Reserves from

August 1975 to August 1994 (with periodic active duty

for training (ACDUTRA) and inactive duty for training

(INACDUTRA)). This matter is before the Board of

Veterans’ Appeals (Board) on appeal from a March

2004 rating decision by the Newark, New Jersey

Department of Veterans Affairs (VA) Regional Office

(RO). In September 2005, a Travel Board hearing was

held before the undersigned; a transcript of this

hearing is of record. In February 2007 and July 2007,

the Board referred the case to the Veterans Health

Administration (VHA) for advisory medical opinions

In December 2006, April 2007, July 2007, September

2007, November 2007 and December 2007, the veteran

submitted additional evidence that was not reviewed

by the RO. However, in statements received by the

Board in December 2006, April 2007 and January

2008, he waived RO consideration of the additional

evidence, permitting the Board to consider such

records in the first instance. See 38 C.F.R. § 20.1304(c)

Hence, the additional evidence is being considered.

18a

FINDINGS OF FACT

1. CAD was not manifested during the veteran’s period

of active duty service from September 1956 to October

1956, and is not shown to be related to this period of

service.

2. There is no competent evidence of the onset of

cardiovascular disability during a_ period of

ACDUTRA; a cardiac event (such as heart attack or

stroke) on ACDUTRA or INACDUTRA is not shown;

and it is not shown that CAD increased in severity

during any specific period of ACDUTRA.

CONCLUSION OF LAW

Service connection for CAD is not warranted. 38

U.S.C.A. §§ 101(24), 1110, 1131, 1153, 5107 (West

2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.306

(2007).

REASONS AND BASES FOR

FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA’s duties to notify and

assist claimants in substantiating a claim for VA

benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,

5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159,

3.326(a). The VCAA applies to the matter being

addressed.

Upon receipt of a complete or substantially complete

application for benefits, VA is required to notify the

claimant and his or her representative, if any, of any

19a

information, and any medical or lay evidence, that is

necessary to substantiate the claim. 38 U.S.C.A.

§ 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principt,

16 Vet. App. 183 (2002). Proper VCAA notice must

inform the claimant of any information and evidence

not of record (1) that is necessary to substantiate the

claim; (2) that VA will seek to provide; (3) that the

claimant is expected to provide; and (4) must ask the

claimant to provide any evidence in his or her

possession that pertains to the claim. 38 C.F.R.

§ 3.159(b)(1). VCAA notice should be provided to a

claimant before the initial unfavorable agency of

original jurisdiction decision on a claim. Pelegrini v.

Principi, 18 Vet. App. 112 (2004).

The veteran was advised of VA’s duties to notify and

assist in the development of this claim in a December

2003 letter, prior to the initial rating decision. This

letter explained the evidence necessary to substantiate

his claim, the evidence VA was responsible for

providing, and the evidence he was responsible for

providing. The December 2003 letter also specifically

advised the veteran to submit any pertinent evidence

in his possession. While he was not advised of the

criteria governing effective dates of awards, he is not

prejudiced here by lack of such notice (see

Dingess / Hartman v. Nicholson, 19 Vet. App. 473, 490-

91 (2006)). This is because the Board concludes below

that the preponderance of the evidence is against the

claim of service connection for CAD; therefore, any

questions as to the rating or effective date to be

assigned are moot.

Regarding the duty to assist, VA has obtained the

veteran’s service medical records (SMRs) and records

of pertinent VA and private medical treatment.

20a

Furthermore, in 2007, the Board sought a VHA

medical advisory opinion from a cardiology expert. The

Board notified the veteran of this opinion and provided

him with a copy of the opinion. He was notified that he

had 60 days to submit any additional evidence or

argument in support of his claim. Subsequently, he

submitted additional argument and evidence and

waived RO consideration of the additional evidence

(see January 2008 letter from the veteran), permitting

the Board to consider such records in the first

instance. See 38 C.F.R. § 20.1304(c). The Board is

satisfied that the RO has complied with VA’s duty to

assist the veteran in the development of the facts

pertinent to his claim. He is not prejudiced by the

Board’s proceeding with appellate review of the merits

of the claim at this time.

Il. Service Connection

Service connection may be granted for disability

resulting from personal injury suffered or disease

contracted during active service, or for aggravation of

a pre-existing injury suffered, or disease contracted,

during such service. 38 U.S.C.A. §§ 1110, 1131; 38

C.F.R. § 3.303(a). Service connection may also be

granted for a disease initially 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). Active

military, naval, or air service includes any period of

ACDUTRA during which the individual concerned was

disabled from a disease or injury incurred or

aggravatec. in the line of duty, and any period of

INACDUTRA during which the individual concerned

was disabled from an injury incurred or aggravated in

the line of duty (to include from acute myocardial

Pla

infarction, a cardiac arrest or a cerebrovascular

accident occurring during such training). 38 U.S.C.A

§ 101(24).

Except as otherwise provided by law, a claimant has

the responsibility to present and support a claim for

benefits under laws administered by the Secretary.

The Secretary shall consider all information and lay

and medical evidence of record in a case before the

Secretary with respect to benefits under laws

administered by the Secretary. When there is an

approximate balance of positive and negative evidence

regarding any issue material to the determination of a

matter, the Secretary shall give the benefit of the

doubt to the claimant. 38 U.S.C.A. § 5107; see also

Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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.

The veteran had active service from September 6, 1956

to October 16, 1956. His SMRs for this period of

service are silent for complaints or findings related to

CAD. He also had service in the Army Reserves from

August 1975 to August 1994 (with periodic

ACDUTRA/INACDUTRA). The evidence of record

shows that he suffered a myocardial infarction on

February 3, 1987; he was not on active duty status at

that time.

The evidence of record shows that the veteran was

employed as a material handler in 1987 (when he

suffered his heart attack and CAD was diagnosed and

surgically treated (coronary artery bypass grafting

(CABG)). In 2000, he was employed by the New Jersey

Department of Corrections.

The medical evidence of record also includes: private

medical records which note the veteran’s complaints of

severe chest pain in February and March 2000 with

subsequent cardiac catheterization in March 2000; a

May 2000 statement in which Dr. C.P. notes that the

veteran’s civilian job involved a great deal of mental

stress and physical exertion, and therefore, because of

his cardiac problems, it would be inappropriate for him

to continue to work; and an April 2000 letter from the

State of New Jersey, awarding the veteran disability

retirement benefits.

Dr. D.N.G. opined in August 2003 and May 2004 that

the major ongoing stresses related to the veteran’s

reserve duties and travel time contributed to his heart

attack.

In March 2005, a VA cardiologist opined that the

veteran’s cardiac problems were not caused by his

military service. Rather, underlying risk factors,

including high cholesterol (reportedly 237 mg% at the

time of his heart attack), were to blame. Moreover, the

VA cardiologist stated that job strain was not related

to the prevalence and outcome of coronary artery

disease.

In July 2005, Dr. C.L.M. opined that while the veteran

had some evidence of mild hyperlipidemia, this was

unlikely the only cause of his cardiac problems. He

opined that the veteran’s high stress level should be

considered a substantial contributing cause to his

coronary artery disease.

At the September 2005 Travel Board hearing, the

veteran maintained that the severe stress of his

reserve service, to include a 2 “’ hour drive to and from

23a

his home and his duty station, the stress of his reserve

duties, and his failure to receive timely promotions

because of administrative moves and reorganizations,

caused his heart attack and CAD.

In August 2006, Col. D.P.S. noted that after reviewing

the medical records and oral and_ written

documentation from the veteran’s Reserve service in

1987, he supports the veteran’s contention that he was

under a high degree of stress during the months

leading up to his myocardial infarction. Col. D.P.S.

also opined:

In addition, current medical literature seems to

clearly support the contributory role of job

related stress in the evolution and progression

of atherogenic ischemic myocardial disease.

In light of this, [the veteran’s] contention that

job stress during performance of his military

duties was an exacerbating factor of his

myocardial infarction in February of 1987 is

extremely plausible.

In November 2006, Dr. A.R. opined that various forms

of psychological stress have been definitively

correlated with the occurrence and progression of

coronary artery disease. He further opined that the

veteran was adversely affected by perceived job strain.

In January 2007 and May 2007, Dr. V.T.R. opined that

the stress that the veteran experienced while in the

reserves was a contributing factor in the veteran’s

coronary artery disease and the progression of same.

24a

Pursuant to the Board’s referral of this case for a VHA

medical opinion, in March 2007 a VA cardiologist

reviewed the veteran’s claims folder and opined:

Stress can precipitate myocardial infarction.

However whether prolonged stress alone can

produce coronary artery disease in a person

without other risk factors is not well

established.

It is as hkely as not that the veteran suffered a

heart attack from prolonged stress. However it

is unlikely that the veteran’s currently

diagnosed coronary artery disease 1s causally

related to the stress during his period of reserve

duty.

In April 2007, Col. D.P.S. disagreed with the

conclusion that the veteran’s coronary artery disease

is unlikely to be causally related to the stress he

experienced during his reserve duty.

in May 2007, Dr. C.L.M. opined that stress must be

considered an oncoming (on-going) causative factor in

the veteran’s heart disability.

In July 2007, Dr. V.T.R. stated that he felt that stress

can play a role in promoting CAD independent of other

risk factors. He added that the veteran also has a

history of hypercholesterolemia, and stated that stress

can promote CAD with this setting as well. He

concluded that the veteran’s contention that stress

contributed to his cardiac problem is “reasonable.”

Pursuant to the Board’s referral of this case for a VHA

medical opinion, in August 2007 a VA cardiologist

25a

reviewed the veteran’s claims folder and answered the

following directive from the Board: provide a more

detailed medical opinion as to the likelihood (i.e., very

likely, as likely as not, or highly unlikely) that the

veteran’s currently diagnosed CAD is causally related

to the “stress” he contends was associated with his

periods of reserve duty.

In response, the VA cardiologist noted (in a September

2007 revised opinion):

Despite published literature suggesting a

correlation between psychosocial stress and the

development of [CAD] and adverse cardiac

events; it remains unclear as to the clinical

significance of “psychosocial stress” relative to

the known major coronary risk factors. Drs

Lavie and Milani from the Ochsner Clinic found

in their studies that “patients with adverse

behavior factors generally had other adverse

CAD risk profiles.”

Psychosocial stress and personality type (Type

A) haven (sic) been examined extensively, but

there is insufficient evidence to link them

directly as a_e significant risk factor for

atherosclerotic heart disease. The commonly

recognized and accepted coronary risk factors

include hypertension, diabetes, smoking,

hypercholesterolemia, family history, age, and

male sex.

Of all the physicians who provided supporting

letters for [the veteran], Dr. [A.R.] is most

credentialed through his research in the field of

psychosocial stress. Dr. [A.R.] states more

26a

definitively of the correlation between

psychosocial stress and the occurrence and

progression of [CAD], but other researchers are

more cautious in their opinion due to lack of

definitive studies. In the mean time, [fal]

practicing cardiologist can only say that there

seems/suggests/or appears to be a correlation

between stress and [CAD}.

Stress is unavoidable in our society. There are

work stress, home stress, and financial stress.

Individual differences in response to stress,

either environmental and or psychosocial,

suggest a more complex, biological,

environmental, and psychosocial interaction. It

has been suggested that an_individual’s

underlying personality and social makeup are

more important in dictating his response and

reaction to outside stress. People in highly

stressful jobs do not necessarily develop [CAD].

It is my opinion that there is insufficient

evidence to establish causality between stress

and [CAD]. At this time, it is my opinion that

psychosocial stress is unlikely to cause [CAD].

As Dr. CLM stated, stress may be an “up and

coming” risk factor, but it remains

controversial. Even IF stress played a role in

[the veteran’s] heart attack, I believe its role is

minor in comparison to [the veteran’s] other

coronary risk factors. In his medical record, it is

documented that [the veteran] has “a history of

hypercholesterolemia and _ hypertension

(Medical Health Center, Dr CP in 6/2000). [The

veteran] is typical of patients in Drs Lavie’s and

Milani’s studies with multiple CAD risk factors.

27a

In a November 2007 letter, Dr. C.L.M. indicated that

he had reviewed the 2007 VHA opinion. He took issue

with the VHA physician’s characterization of his

medical opinion. He never said that stress was an “up

and coming” risk factor; rather, he said it was an

“oncoming” (meaning “on-going”) risk factor. In

addition, he never characterized this opinion was

“controversial.” He stated that he treated the veteran

when he had his initial myocardial infarction in 1987,

and continues to feel that “stress has played a major

role” in the veteran’s CAD.

The other evidence of record includes internet and

magazine articles which discuss the relationship

between stress and various physical disabilities,

including heart disease.

As was previously noted, the veteran’s SMRs do not

show that CAD was manifested during his period of

active service (September 1956 to October 1956). The

Board therefore finds that the preponderance of the

evidence is against a finding that CAD became

manifest during that period of active service and

persisted. Furthermore, it is neither alleged, nor

suggested by any evidence of record, that CAD is

somehow otherwise directly related to (i.e., incurred in

or aggravated by) this period of service. Consequently,

service connection for CAD based on such findings is

not warranted.

The veteran also had service in the Army Reserves

from August 1975 to August 1994. As was previously

noted, service connection may be established for

disease incurred on a period of ACDUTRA. The

veteran suffered a myocardial infarction on February

3, 1987; however, he was not on active duty status at

28a

that time. Thereafter, he has received ongoing

treatment for CAD.

Regarding service connection for CAD based on a

theory of entitlement that such disease is related to

ACDUTRA or INACDUTRA, some discussion of

governing law and regulations is necessary at the

outset. First of all, it is noteworthy that INACDUTRA

is considered active (and thereby qualifying for service

connection) military, naval, or air service if the

individual was disabled from an injury during such

period of service (and regarding cardiovascular disease

specifically, if the individual suffered an acute

myocardial infarction, a cardiac arrest or a

cerebrovascular accident during such training). See 38

U.S.C.A. § 101(24)(C)(ii). It is neither shown by the

record, nor alleged, that the veteran suffered an acute

myocardial infarction, a cardiac arrest, or a

cerebrovascular accident during any period of

INACDUTRA. Consequently, it is not shown that he

has disability due to injury during INACDUTRA which

may be service-connected.

Regarding ACDUTRA, such service is considered

active (and qualifying for service connection) military,

naval or air service for “any period” of such service

during which the individual concerned was disabled

from a disease or injury incurred or aggravated in the

line of duty. In the instant case, it has not been alleged

that the veteran’s CAD is due to disease or injury

incurred or aggravated during any specific period of

ACDUTRA. Notably, the CAD was apparently first

diagnosed when he suffered a heart attack in 1987. As

was noted above this was not during a period of

ACDUTRA. Since there is no period of ACDUTRA

prior to the veteran’s 1987 heart attack implicated (by

29a

allegation or any evidence in the record) in the onset of

his CAD, there is no basis for finding that the CAD

was incurred during a period of ACDUTRA.

The veteran maintains that the severe stress of his

reserve service, to include a 2 4% hour drive to and from

his home and his duty station, the stress of his reserve

duties, and his failure to receive timely promotions

because of administrative moves and reorganizations,

caused his heart attack and CAD. This allegation

raises the question of whether the veteran’s CAD was

aggravated during a period ACDUTRA (because the

veteran continued serving in the Reserves after his

1987 heart attack and initial diagnosis of CAD, and

thus the CAD is shown to have pre-existed any periods

of ACDUTRA after the heart attack). Significantly,

aggravation may not be conceded where the disability

underwent no increase in severity during service. See

38 C.F.R. § 3.306 (b).

Substantial medical opinion evidence addressing the

etiology of the veteran’s CAD has been associated with

the record; if such evidence established the onset or

increase in severity of CAD during a period of

ACDUTRA, it would be critical. Drs. D.N.G., C.L.M..,

A.R. and V.T.R., and Col. D.P.S. all conclude that the

ongoing stress related to the veteran’s Reserve duties

contributed to the veteran’s CAD. Notably, none of

these physicians discussed the veteran’s history of

hyperlipidemia and hypertension, or the stress and

physical exertion associated with the veteran’s civilian

job. Conversely, a 2007 advisory VHA expert opined

that it was not likely that the stress associated with

the veteran’s Reserve service caused his CAD. This

opinion is based on a review of the veteran’s entire

pertinent medical history, including his SMRs and

30a

post-service medical evidence as noted above, as well

as the private medical evidence of record. The

consulting expert provided a detailed explanation of

the rationale for his conclusion, as noted above. Of

note, the expert opined that there was insufficient

evidence to establish causality between stress and

CAD, noting that people in highly stressful jobs do not

necessarily develop CAD. The consulting expert

identified commonly recognized and accepted coronary

risk factors, and noted the veteran’s history of two of

these - hypertension and hypercholesterolemia. In

light of the foregoing, the Board finds the VHA opinion

the most probative and persuasive evidence in this

matter. (The Board notes the veteran’s assertion that

the VHA expert lacks the credentials to offer an

opinion in this matter because, unlike Drs. C.L.M. and

A.R., he is not a board certified cardiologist (see

statement from the veteran received December 2007).

However, the Board notes that according to the

American Board of Internal! Medicine, the VHA expert

has a specialty certification in internal medicine and

a subspecialty certification in cardiovascular disease.

For the reasons noted above, the Board has found the

VHA expert’s opinion probative and persuasive in the

matter of the etiology of the veteran’s CAD.)

Regardless of any finding as to the etiology of the

veteran’s CAD, i.e., whether it is stress related (and

specifically related to stress in the line of duty), no

medical evidence in the record shows or suggests that

the CAD had its onset or (specifically for ACDUTRA

periods after the veteran’s heart attack and diagnosis

of CAD) increased in severity during a period of

ACDUTRA. It must be emphasized that unless such is

shown, the periods of ACDUTRA are not considered

active military, naval or air service (and not qualifying

service for service connection purpose

U.S.C.A. §§ 101(24)(B); 1110

The Board has considered the benefit of t}

doctrine; as the preponderance of the evidence |

against the veteran’s claim, that doctrine does not

apply

ORDER

Service connection for COD is denied

/s/George R. Senyk

George R. Senyk

Veterans Law Judge, Board of Veterans’ Appea

32a

APPENDIX E

DONALD N. GILL, M.D.

VINCENT T. RANDAZZO, M.D.

MEMBERS OF INTEGRATED MEDICINE

ALLIANCE, PA

248 BROAD STREET

RED BANK, NEW JERSEY 07701

732-530-3433 FAX: 732-758-1953

INTERNAL MEDICINE

August 6, 2003

Robert Latsch

352 Campbell Ave.

Belford, N.J. 07718

To Whom it May Concern

Mr. Robert Latsch, [REDACTED]/39 has been a

patient under my care since 1987. At that time, he was

hospitalized at Riverview Hospital, Red Bank, N.J.

with an acute myocardial infarction. On 2/11/87, he

had bypass surgery. Subsequently, he became

permanently disabled in October of 2000.

At the time uf his acute myocardial infarction, he was

an active member of the U.S. Army Reserves. His

reserve unit was changed, and he was forced to travel

to Predricktown, N.J. for his reserve duty. That was

2 % hours of travel time. There was a further change

and he was transferred to the 198th unit at Fort

30a

Wadsworth, Staten Island. His duties as mess

sargeant and being in new positions in new units put

severe increased stress on the patient. Ultimately, he

sustained the heart attack and subsequent bypass

surgery, and he has been a cardiac patient ever since

He has since been on disability.

The major ongoing stresses related to his army

reserve, work, travel time were major factors in his

ultimate heart attack.

Sincerely,

/s/Donald N. Gill, M.D

Donald N. Gill, M.D

APPENDIX F

DONALD N. GILL, M.D.

VINCENT T. RANDAZZO, M.D.

MEMBERS OF INTEGRATED MEDICINE

ALLIANCE, PA

248 BROAD STREET

RED BANK, NEW JERSEY 07701

732-530-3433 FAx: 732-758-1953

INTERNAL MEDICINE

May 26, 2004

Robert Latsch

352 Campbell Ave.

Belford, N.J. 07718

To Whom it May Concern

Robert Latsch has been a patient under my care since

1987. At that time he was hospitalized with an acute

myocardial infarction. He had bypass surgery 2/11/87.

Subsequently, he had a PTCA with stent 3/00.

He had a recent nuclear stress test which did show

greater ST depressions than on a stress test done

3/4/03. This was felt to be evidence for mild ischemia

for this level of exercise. Because he’s on a beta

blocker, he could not reach his target heartrate and

subsequently a nuclear test was normal, but no

definite diagnosis could be made due to the heart rate.

Se TeTe |

The patient has had a history of excessive stress while

in the Army reserve. He had his reserve unit changed,

and was forced to travel to Fredricktown Maryland for

his reserve duty. Two and a half hours of travel time

was needed. Further change, he was transferred to the

198th unit at Fort Wadsworth Staten Island. Again,

great travel time.

Because of administrative alteration, he was unable to

have promotions which also added to his stress

These ongoing stresses greatly contributed to Mr

Latsch’s subsequent heart attack.

Sincerely,

/s/Donald N. Gill, M.D

Donald N. Gill, M.D

DNG/r

APPENDIX G

CHARLES L. MILLER, M.D., F.A.C.C.

Integrated Medicine Alliance, PA

1048 BROAD STREET, SUITE 2

SHREWSBURY, NEW JERSEY 07702

(732) 542-2124

BOARD CERTIFIED, INTERNAL MEDICINE BOARD

CERTIFIED, CARDIOVASCULAR DISEASES CERTIFIED,

CERTIFICATION BOARD OF NUCLEAR CARDIOLOGY

PRACTICE LIMITED TO DIAGNOSTIC CARDIOLOGY

7/27/2005

RE: Robert Latsch SS# [REDACTED]-0277

To whom it may concern:

Mr. Robert Latsch has asked me to review his medical

history in light of his disability determination.

1 have not actively treated Mr. Latsch but have

discussed his case with his physician, Dr. Donald Gill,

have reviewed many of his medical records and I have

interviewed Mr. Latsch in some detail.

It is my opinion that, although Mr. Latsch does have

some evidence of mild hyperlipidemia (total cholesterol

of 237 mg%), I feel it is very unlikely the only cause of

his problems and I do believe that the stress in his life

shoud be considered a substantial contributing cause

37a

to his coronary artery disease. 1am aware that, due to

the nature of stress, it is a difficult entity to quantiate,

as opposed to other risk factors such as

hyperlipiedmia, smoking and hypertension. However,

I also believe that the preponderance of the cardiology

community concur that stress 1s a definite risk factor

in many patients with coronary artery disease, and it

appears that Mr. Latsch’s stress level was very high.

| hope that this information will be considered in Mr

Latsch’s case.

Sincerely,

/s/Charles L. Miller

Charles L. Miller, M.D., F.A.C.C

APPENDIX H

CHARLES L. MILLER, M.D., F.A.C.C.

Integrated Medicine Alliance, PA

1048 BROAD STREET, SUITE 2

SHREWSBURY, NEW JERSEY 07702

(732) 542-2124

BOARD CERTIFIED, INTERNAL MEDICINE BOARD

CERTIFIED, CARDIOVASCULAR DISEASES CERTIFIED,

CERTIFICATION BOARD OF NUCLEAR CARDIOLOGY

PRACTICE LIMITED TO DIAGNOSTIC CARDIOLOGY

8/2/2006

RE: Robert Latsch SS# [REDACTED]-0277

To whom it may concern

Mr. Robert Latsch has again asked me to review his

medical history in light of his disability determination

in follow up to my letter of 7/5/2005.

On reviewing Mr. Latsch’s case again, and in light of

my knowledge of his cardiac history, it is my

considered opinion that, although Mr. Latsch does

have mild hnypercholesterolemia, emotional stress has

played a significant role in the causation of his cardiac

problems and stress contines to be a _ major

contributing factor in his life. In my experience, stress

is considered a major risk factor in the causation of

39a

coronary artery disease and | feel the medcial

community in general agrees with this premise, even

though stress is not a quatifiable factor.

I would respectfully request that Mr. Latch’s case be

re-evaluated with the emphasis that the stress in his

life has been a major risk factor in causing his

coronary artery disease.

I hope that this information will be helpful in the

consideration of Mr. Latsch’s case.

Sincerely,

/s/Charles L. Miller

Charles L. Miller, M.D., F.A.C.C.

APPENDIX I

DEPARTMENT OF THE ARMY

HEADQUARTERS,

PATTERSON ARMY HEALTH CLINIC

FORT MONMOUTH, NEW JERSEY

07103-5500

REPLY TO

ATTENTION

MCXS-Z 21 August 2006

Memorandum for Department of Veterans Affairs

Subject: Robert Latsch’s Disability Claim

I had the opportunity to discuss Mr. Latsch’s (SSN

{REDACTED]-0277) concerns at some length with him.

On the basis of his request I reviewed his medical

record, oral and written documentation of his situation

in the reserves in the Fall and Winter of 1987, and

written supporting documentation from SFC

Spengeman (ret), SSG Leuttchau (ret), CDR Murphy,

Donald Gill MD, and Charles Miller MD.

I feel that Mr. Latsch’s contention that he was under

a high degree of stress during the months leading up

to his myocardial infarction is fairly well established.

4la

In addition, current medical literature seems to clearly

support the contributory role of job related stress in

the evolution and progression of atherogenic ischemic

myocardial disease.

In hght of this, Mr. Latsch’s contention that job stress

during performance of his military duties was an

exacerbating factor of his myocardial infarction in

February of 1987 is extremely plausible.

Given the above, the conclusion that Mr. Latsch’s

subsequent disability should be considered service

aggravated is at worst reasonable and at best fairly

compelling. When primary events occur while not on

duty it is always extremely difficult to determine what

if any unique role prior military service played.

Regardless, military duty is frequently uniquely

stressful compared to civilian activities, even in a

garrison environment.

A careful reconsideration of the VA decision made in

2005 certainly seems warranted.

Thank you for your attention to this matter.

/s/DON P. SPEERS, JR.

DON P. SPEERS, JR.

COL, MC

Commanding

APPENDIX J

_ University Hospital of

St. Luke's - Columbia University

: Roosevelt.

College of Physicians & Surgeons

St. Luke’s-Roosevelt

Hospital Center

St. Luke’s Division

1111 Amsterdam Avenue

New York, NY 10025

To Whom It May Concern:

November 29, 2006

I ama full time clinical and academic cardiologist, and

a Professor of Medicine at the Columbia University

College of Physicians and Surgeons, who has studied

the effects of stress ou heart disease for many years.

At the request of Mr. Robert Latsch, I have reviewed

his claim for disability, the summaries of his

evaluations by various physicians and the summary of

the response to claims by the Department of Veterans

Affairs. I also have discussed Mr. Latsch’s work

history with him.

[ have noted that the Medical staff or the Department

of Veterans Affairs denied Mr. Latsch’s claim asserting

that “job strain 1s not related to the prevalence or

43a

outcome of coronary artery disease. Job strain has

never been a predictor of cardiac events.”

My clinical impression ts that Mr. Latsch did suffer

from perceived job strain, and that he was adversely

affected by it. Various forms of psychological stress

have now been definitively correlated with the

occurrence and progression of coronary artery disease

and the acceleration of cardiac events. These include

chronic depression and chronic stress. The most widely

studied chronic stressor has been work stress.

Pathophysiological studies have linked work stress to

the activation of both the sympathetic nervous system

and the hypothalamic pituitary cortical axis, with

resultant increased levels of serum, urinary and

salivary cortisol, and norepinephrine. Patients under

increased job stress have been noted to have increased

levels of hypertension, greater left ventricular mass,

accelerated atherosclerosis, and premature death, as

well as more cardiac events. I include for your

information some classic references that support the

association of job stress with these conditions. Thus,

the statement that job stress is unfounded and

incorrect.

I hope this additional information is useful to all

parties concerned in the further evaluation of Mr.

Latsch’s claim for disability.

Sincerely,

/s/Alan Rozanski, MD

Alan Rozanski, MD

Professor of Medicine

Columbia University College

of Physicians and Surgeons

44a

Continuum Health Partners, Inc

St.buke's

45a

APPENDIX K

VINCENT T. RANDAZZO, MD

248 BROAD STREET

RED BANK, NEW JERSEY 07701

732-530-3433

FAX: 732-758-1953

January 29, 2007

Re: Latsch, Robert

DOB: [REDACTED]/39

To Whom It May Concern:

I am now Mr. Robert Latsch’s primary care

physician since Dr. Gill, his previous doctor, has

retired.

Mr. Latsch is a 67 year old white man who had an

acute myocardial infarction back in 1987. He

subsequently had coronary artery bypass surgery,

followed by an angioplasty with sent in March 2000.

The patient contends that he experienced excessive

stress while in the army reserves and this played a

significant role in his sustaining a myocardial

infarction.

I feel stress has been felt to be a contributing factor

in coronary artery disease and progression of same

And hence. I feel that Mr. Latsch’s contention that the

stress contributed to his myocardial infarction is

reasonable. Should you have any questions please

contact me

/s/ Vincent T. Randazzo, MD

Vincent T. Randazzo, MD

APPENDIX L

11/29/2007 09:00 FAX 7326711100 STAPLES 011

DEPARTMENT OF

VETERANS AFFAIRS

VA Gulf Coast Veterans

Health Care System

400 Veterans Avenue

Biloxi, MS 39531

March 28, 2007 In Reply Refer To:

C&P Examination done on Robert J. Latsch

No examination done - only for opinion

Done by Narayana Swamy, M.D.

Done at Biloxi, VA on March 20, 2007

Re: Robert J. Latsch

SSN: [REDACTED]-0277

DOB: [REDACTED], 1939

I have reviewed all available records on Mr. Latsch

including various reports and reports and opinions

from other physicians.

Mr. Latch suffered an acute myocardial infarction on

1987 followed by CABGS. In 2000 because of continual

chest pains he had another cardiac cath done with

subsequent coronary angioplasty.

48a

Stress can precipitate myocardial infarction. However

whether prolonged stress alone can produce coronary

artery disease in a person without other risk factors is

not well established.

Opinion: It is as likely as not that the veteran suffered

a heart attack from prolonged stress. However it is

unlikely that the veteran’s currently diagnosed

coronary artery disease is causally related to the stress

during his period of reserve duty.

/s/ Narayana Swamy

Narayana Swamy, M.D

APPENDIX M

DEPARTMENT OF THE ARMY

HEADQUARTERS, PATTERSON ARMY

HEALTH CLINIC

FORT MONMOUTH, NEW JERSEY

07703-5500

REPLY TO

ATTENTION

27 April 2007

Memorandum for Department of Veterans Affairs

Subject: Robert Latsch’s Disability Claim

Mr. Latch requested that I review the memo dated 28

March 2007 from Or. Swamy, MD.

I agree with the conclusion that there is a reasonable

likelihood that Mr. Latsch’s MI in 1987 was related to

job stress. On the basis of my review of the current

literature and my understanding of the definition of

service aggravation, I disagree with Dr. Swamy’s

conclusion that the Veteran’s currently diagnosed

coronary artery disease is unlikely to be causally

related to the stress during his period of reserve duty.

Although an increased risk between stress and MI

seems to be fairly well established the exact

mechanisms of that linkage is poorly understood.

50a

There seems to be credible evidence for both a

relatively acute risk on the basis of effects on platelet

function, hormone levels, and blood pressure response,

and as well a chronic component on the basis or

exacerbation of the metabolic syndrome among other

factors. As an example of a similar scenario; the

currently established standards support the finding of

service aggravation on the basis of the service lifestyle

in cases of exacerbation of Type II Diabetes.

Regardless it seems very difficult to effectively argue

that an Acute MI does not constitute a legitimate

service aggravation (on the basis of a permanent

acceleration of the natural history of the disease

process) of Mr. Latsch’s coronary artery disease.

This case seems to afford the opportunity for careful

review and clarification of the VA’s approach to the

role of job stress in the evolution of atherosclerotic

cardiovascular disease. Thank you for your

consideration.

/s/ Don P. Speers, Jr.

DON P. SPEERS, J.R.

COL, MC

Commanding

APPENDIX N

11/29/2007 09:00 FAX 7326711100 STAPLES 008

CHARLES L. MILLER, M.D., F.A.C.C.

INTEGRATED MEDICINE ALLIANCE, PA

1048 BROAD STREET, SUITE 2

SHREWSBURY, NEW JERSEY 07702

(732) 542-2124

BOARD CERTIFIED, INTERNAL MEDICINE

BOARD CERTIFIED, CARDIOVASCULAR DISEASES

CERTIFIED, CERTIFICATION BOARD OF NUCLEAR

CARDIOLOGY

PRACTICE LIMITED TO DIAGNOSTIC CARDIOLOGY

5/15/2007

To: Department of Veterans Affairs

RE: Robert Latsch SS# [REDACTED]-0277

To whom it may concern:

Once again, Mr. Latsch has asked me to review his

case for disability determination. I have previously

sent correspondence in 2005 and 2006.

I have most recently reviewed letters from Dr. Alan

Rozanski, a recognized expert in the field of stress

related coronary artery disease, Col. Don P. Speers,

& ¢)..

52a

Jr., U.S. Army Medical Corps and Dr. Narayana

’ I

Swamy.

There appears to be considerable agreement that Mr.

Latsch’s initial myocardial infarction was substantially

related to work related stress. However, there is some

disagreement as to how much effect the stress has had

on his continuing coronary artery disease.

I agree wirh Dr. Rozanski and Col. Speers that stress

must be considered an oncoming causative factor in

Mr. Latsch’s heart condition. I feel if he had not had

the first work-related episode that his future health

would have been significantly better and that he very

likely would not have had the significant on-going

problems that he now has.

I feel his case for disability needs to be reviewed in

light of his total on-going history of coronary artery

problems which cannot be isolated to individual or

isolated events.

Thank you for your consideration of this matter.

Sincerely,

/s/ Charles L. Miller

Charles L. Miller, M.D., F.A.C.C

APPENDIX O

VINCENT T. RANDAZZO, MD

248 BROAD STREET

RED BANK, NEW JERSEY 07701

732-530-3433

FAX: 732-758-1953

May 17, 2007

Re: Latsch, Robert

DOB: [REDACTED]/39

To Whom It May Concern:

Mr. Latsch has requested that I write you again in

reference to his history of acute myocardial infarction

and coronary artery disease. I refer you to my letter of

1/29/07. Mr. Latsch is a 68 year old white man who

contends that he experienced excessive stress while in

the Army Reserve and this played a role in his

sustaining a myocardial infarction back in 1987.

Subsequently he needed coronary bypass surgery

followed by angioplasty with stents in March 2000.

As I said in my previous letter, I feel stress played

a contributing factor in the patient’s coronary artery

disease and progression of same. I feel that Mr.

Latsch’s contention that the stress contributed to his

cardiac problem is reasonable. Should you have any

questions, please call me. Otherwise, I remain.

54a

Sincerely yours,

/s/ Vincent T. Randazzo

Vincent T. Randazzo, MD

VR/bz

APPENDIX P

2025658573 12:38:35 p.m. 07-19-2007 2/4

07/10/2007 12:47 1732[]152 STAPLES PAGE 03

VINCENT T. RANDAZZO, MD

248 BROAD STREET

RED BANK, NEW JERSEY 07701

732-530-3433

FAX: 732-758-1953

July 6, 2007

Re: Latsch, Robert

DOB: [REDACTED]/39

To Whom It May Concern:

Mr. Latsch asked that I please write you again in

reference to his acute myocardial infarction and

coronary artery disease. Please see my previous letters

of 1/29/07 and 5/17/07. Mr. Latsch had an acute

myocardial infarction in 1987 followed by coronary

artery bypass surgery. In the year 2000, the patient

had an angioplasty.

Mr. Latsch contends that the stress he experienced

during his Army Reserve time precipitated his acute

myocardial infarction. I feel stress can play a role in

promoting coronary artery disease independent of

other cardiac risk factors. Mr. Latsch, however, also

has a history of hypercholesterolemia and stress can

56a

promote coronary artery disease with this setting as

well.

Hence I feel that Mr. Latsch’s contention that

stress contributed to his cardiac problem is reasonable.

Should you have any questions, please contact me.

Otherwise, I remain.

Sincerely yours,

/s/ Vincent T. Randazzo

Vincent T. Randazzo, MD

VR/bz

J UL-19-2007 11:37AM FAX:2025658573

ID: WASHINGTON D.C. VAMC PAGE:002 R=93%

APPENDIX Q

Department of Memorandum

Veterans Affairs

Date: August 30, 2007

From: David Lu, MD /s/D Lu

Medical Expert Opinion (Re: RL)

Board of Veterans’ Appeals

Ross Fletcher, MD, Chief of Staff

I have reviewed the available medical record on

The veteran had active service from September 6 to

October 16, 1956. He also had service in the Army

Reserves from August 1975 to August 1994. RL

suffered a myocardial infarction on February 3,

1987, and underwent coronary artery bypass

surgery. Coronary angioplasty was performed in

2000 and RL went on disability.

“RL contends that the stress he experienced during

his Army Reserve time precipitated his acute

myocardial infarction.” He “maintains that the

severe stress of his reserve service, to include 2 4%

hour drive to and from his home and his duty

station, the stress of his reserve duties, and his

5&a

failure to receive timely promotions caused his

heart attack and coronary artery disease.”

The Board of Veterans’ Appeals would like an opinion

To reconcile the conflicting opinions as to whether

the veteran’s coronary artery disease is causally

related to his service.

To provide a more detailed medical opinion as to

the likelihood (i.e. very likely, as likely as not, or

highly unlikely) that the veteran’s currently

diagnosed coronary artery disease is causally

related to the “stress” . . . associated with his

periods of reserve duty.

To explain the rationale for any opinion that

conflicts with those provided by Drs C.P., C.L.M.,

A.R., V.T.R., and D.N.G., and Col D.P.S.

Response:

Despite published literature suggesting a correlation

between psychosocial stress and the development of

coronary artery disease and adverse cardiac events; it

remains unclear as to the clinical significance of

“psychosocial stress” relative to the known major

coronary risk factors. Drs Lavie and Milani from the

Ochsner Clinic found in their studies that “patients

with adverse behavior factors generally had other

adverse CAD risk profiles.”

Psychosocial stress and personality type (Type A)

haven been examined extensively, but there is

insufficient evidence to link them directly as a

significant risk factor for atherosclerotic heart disease

59a

The commonly recognized and accepted coronary risk

“factors include hypertension, diabetes, smoking,

hypercholesterolemia, family history, age, and male

sex.

Of all the physicians who provided supporting letters

for RL, Dr Alan Rozanski is most credentialed through

his research in the field of psychosocial stress. Dr Alan

Rozanski states more definitively of the correlation

between psychosocial stress and the occurrence and

progression of coronary artery disease, but other

researchers are more cautious in their opinion due to

lack of definitive studies. In the mean time, practicing

cardiologist can only say that there seems/suggests/or

appears to be a correlation between stress and

coronary artery disease.

Stress is unavoidable in our society. There are work

stress, home stress, and financial stress. Individuai

differences in response to stress, either environmental]

and or psychosocial, suggest a more complex biological,

environmental, and psychosocial interaction. It has

been suggested that an individual’s underlying

personality and social makeup are more important in

dictating his response and reaction to outside stress.

People in highly stressful jobs do not necessarily

develop coronary artery disease.

It is my opinion that there is insufficient evidence to

establish causality between stress and coronary artery

disease. At this time, it is my opinion that psychosocial

stress is as likely as not to cause coronary artery

disease. As Dr CLM stated, stress may be an “up and

coming” risk factor, but it remains controversial. Even

IF stress played a role in RL’s heart attack, I believe

its role is minor in comparison to RL’s other coronary

60a

risk factors. In his medical record, it is documented

that RL “smoked a pipe, but did not inhale” and that

his “father and mother died of heart disease

(Riverview Medical, Dr AK in 3/1994); in addition, RL

has “a history of hypercholesterolemia and

hypertension (Medical Health Center, Dr CP in

6/2000). RL is typical of patients in Drs Lavie’s and

Milani’s studies with multiple CAD risk factors.

6la

APPENDIX R

Department of Veterans Affairs

Board of Veterans’ Appeals

Washington DC 20420

In Reply Refer To: 014157

C 28 250 142

LATSCH, Robert

SEP 13 2007

Ross D. Fletcher, M.D.

Chief of Staff

V AMC Washington

50 Irving St. NW

Washington, DC 20422

Dear Dr. Fletcher:

On August 30, 2007, Dr. David Lu provided a medical

opinion in the case of Mr. Robert Latsch. The medical

opinion provided on the above veteran was determined

to be confusing and requires clarification. Please

clarify the following issue: Dr. Lu states that stress is

as likely as not a cause of CAD, but his opinion is

largely supportive of his conclusion that there is

insufficient evidence to show such an association.

62a

If You Have Questions

e Ifyou have questions, please call (202) 565-4748

and ask for Carol Murrell.

The information you provide ts necessary for the Board

to make a determination regarding the veteran’s

entitlement to benefits. Your protnpt attention to this

matter will expedite the decision-making process at

the Board, and we appreciate your efforts to assist us.

Sincerely,

/s/ Carnie M. Johnson-Clark

Carric M. Johnson- Clark

Director, Management and Administration

Enclosures

63a

APPENDIX S

11/29/207 09:01 FAX 7328711100 STAPLES 014

SIEP-17-2007 15:26 From: = T0:2025658573 P.3/4-4/4

Department of Memorandum

Veterans Affairs

Date: August 30, 2007

From: David Lu, MD

Subj: Medical Expert Opinion (Re: RI)

To:

Board of Veterans’ Appeals

Thru: Ross Fletcher, MD, Chief of Staff

] have reviewed the available medical record on

patient RL.

The veteran had active service from September 6 to

October 16, 1956. He also had service in the Army

Reserves from August 1975 to August 1994. RI

suffered a myocardial infarction on February 3,

1987, and underwent coronary artery bypass

surgery. Coronary angioplasty was performed in

2000 and RL went on disability.

RL “contends that the stress he experienced during

his Army Reserve time precipitated his acute

myocardial infarction. He “maintains that the

64a

severe stress of his reserve service, to include 2 %

hour drive to and from his home and his duty

station, the stress of his reserve duties, and his

failure to receive timely promotions caused his

heart attack and coronary artery disease.”

The Board of Veterans’ Appeals would hke an opinion

1. To reconcile the conflicting opinions as to whether

the veteran’s coronary artery disease is causally

related to his service.

2. To provide a more detailed medical opinion as to

the likelihood (i.e. very likely, as likely as not, or

highly unlikely) that the veteran’s currently

diagnosed coronary artery disease ts causally

related to the “stress” . . . associated with his

periods of reserve duty.

3. To explain the rationale for any opinion that

conflicts with those provided by Drs C.P., C.L.M.,

A.R., V.T.R., and D.N.G., and Col D.P.S.

Response:

Despite published hterature suggesting a correlation

between psychosocial stress and the development of

coronary artery disease and adverse cardiac events; it

remains unclear as to the clinical significance of

“psychosocial stress” relative to the known major

coronary risk factors. Drs Lavie and Milani from the

Ochsner Clinic found in their studies “that patients

with adverse behavior factors generally had other

adverse CAD risk profiles.”

Psychosocial stress and personality type (Type A)

haven been examined extensively, but there is

insufficient evidence to link them directly as a

significant risk factor for atherosclerotic heart disease.

The commonly recognized and accepted coronary risk

factors include hypertension, diabetes, smoking,

hypercholesterolemia, family history, age, and male

SCX.

Of all the physicians who provided supporting letters

for RL. Dr Alan Rozanski is most credentialed through

his research in the field of psychosocial stress. Dr Alan

Rozanski states more definitively of the correlation

between psychosocial stress and the occurrence and

progression of coronary artery disease, but other

researchers are more cautious in their opmnion due to

lack of definftive studies. In the mean time, practicing

cardiologist can only say that there seems/suggests/or

appears to be a correlation between stress and

coronary artery disease.

Stress is unavoidable in our society. There are work

stress, home stress, and financial stress. Individual

differences in response to stress, either environmental

and or psychosocial, suggest a more complex biological,

environmental, and psychosocial interaction. It has

been suggested that an individual’s’ underlying

personality and social makeup are more important

indicating his response and reaction to outside stress

People in highly stressful jobs do not necessarily

develop coronary artery disease.

It is my opinion that there is insufficient evidence to

establish causality between stress and coronary artery

disease. At this time, it is my opinion that psychosocial

stress is unlikely to cause coronary artery disease. As

66a

Dr CLM stated, stress may be an “up and coming” risk

factor, but it remains controversial. Even IF stress

played a role in RL's heart attack, I believe its role is

minor in comparison to RL’s other coronary risk

factors. In his medical record, it is documented that RL

“smoked a pipe, but did not inhale” and that his

“father and mother died of heart disease (Riverview

Medical, Dr AK in 3/1994); in addition, RL has ”a

history of hypercholesterolemia and hypertension

(Medical Health Center Dr CP In 6/2000). RL is typical

of patients in Drs Lavie’s and Milani’s studies with

multiple CAD risk factors.

11/29/2007 09:00 FAX 7326711100 STAPLES 009

CHARLES L. MILLER, M.D., F.A.C.C.

INTEGRATED MEDICINE ALLIANCE, PA

1048 BROAD STREET, SUITE 2

SHREWSBURY, NEW JERSEY 07702

(732) 542-2124

BOARD CERTIFIED, INTERNAL MEDICINE

BOARD CERTIFIED, CARDIOVASCULAR DISEASES

CERTIFIED, CERTIFICATION BOARD OF

NUCLEAR CARDIOLOGY

PRACTICE LIMITED TO DIAGNOSTIC CARDIOLOGY

11/20/2007

To: Department of Veterans Affairs

RE: Robert Latsch SS# [REDACTED]-0277

To Whom it May Concern:

Mr. Latsch asked me to review the most recent letter

concerning his disability determination as it relates to

work-related stress.

In his August 30, 2007 letter Dr. Lu states that my

letter stated that “stress may be an up and coming risk

factor, but remains controversial”. I must take issue

68a

with this statement since my letter contained the

following paragraph:

“I agree with Dr. Rozanski and Col. Speers that stress

must be considered an oncoming causative factor in

Mr. Latsch’s heart condition. I feel if he had not had

the first work-related episode that his future health

would have been significantly better and that be very

likely would not have had the significant on-going

problems that he now has.”

In the first line the word “oncoming” was a

typographical error which should have been “on-going”

as stated in the last line of the paragraph. In none of

my correspondence have I stated I felt this was

“controversial”.

I treated Mr. Latsch when he had his initial episode in

1987 and I continue to feel, unequivocally, that stress

has played a major role in his conorary artery disease.

I would ask that his case be reviewed in fight of the

above statements and the statements of the other

physicians who have written to you on Mr. Latsch’

behalf.

Thank you for your consideration of this matter.

Sincerely,

/s/ Charles L. Miller

Charles L. Miller, M.D., F.A.C.C.

69a

APPENDIX U

SEP-17-2007 15:26 From: T0:2025658573 P.3/4-4/4

Department of Memorandum

Veterans Affairs

Date: August 30, 2007

From: David Lu, MD

Subj: Medical Expert Opinion (Re: RL)

To:

Board of Veterans’ Appeals

Thru: Ross Fletcher, MD, Chief of Staff

I have reviewed the available medical record on

patient RL.

. The veteran had active service from September 6 to

October 16, 1956. He also had service in the Army

Reserves from August 1975 to August 1994. RL

suffered a myocardial infarction on February 3,

1987, and underwent coronary artery bypass

surgery. Coronary angioplasty was performed in

2000 and RL went on disability.

RL “contends that the stress he experienced during

his Army Reserve time precipitated his acute

myocardial infarction.” He “maintains that the

severe stress of his reserve service, to include 2 %

70a

hour drive to and from his home and his duty

station, the stress of his reserve duties, and his

failure to receive timely promotions... caused his

heart attack an? coronary artery disease.

The Board of Veterans’ Appeals would like an opinion

1. To reconcile the conflicting opinions as to whether

the veteran’s coronary artery disease is causally

related to his service.

2. To provide a more detailed medical opinion as to

the likelihood (i.e. very likely, as likely as not, or

highly unlikely) that the veteran’s currently

diagnosed coronary artery disease is causally

related to the “stress” . . . associated with his

periods of reserve duty.

3. To explain the rationale for any opinion that

conflicts with those provided by Drs C.P., C.L.M.,

A.R., V.T.R., and D.N.G., and Col D.P.S.

Response:

Despite published literature suggesting a correlation

between psychosocial stress and the development of

coronary artery disease and adverse cardiac events; it

remains unclear as to the clinical significance of

“psychosocial stress” relative to the known major

coronary risk factors. Drs Lavie and Milani from the

Ochsner Clinic found in their studies that patients

with adverse behavior factors generally had other

adverse CAD risk profiles.”

Psychosocial stress and personality type (Type A)

haven been examined extensively, but there is

dla

insufficient evidence to link them directly as a

significant risk factor for atherosclerotic heart disease.

The commonly recognized and accepted coronary risk

factors include hypertension, diabetes, smoking,

hypercholesterolemia, family history, age, and male

SCX.

Of all the physicians who provided supporting letters

for RL. Dr Alan Rozanski is most credentialed through

his research in the field of psychosocial stress. Dr Alan

Rozanski states more definitively of the correlation

between psychosocial stress and the occurrence and

progression of coronary artery disease, but other

researchers are more cautious in their opinion due to

lack of definitive studies. In the mean time, practicing

cardiologist can only say that there seems/suggests/or

appears to be a correlation between stress and

coronary artery disease.

Stress is unavoidable in our society. There are work

stress, home stress, and financial stress. Individual

differences in response to stress, either environmental!

and or psychosocial, suggest a more complex biological,

environmental, and psychosocial interaction. It has

been suggested that an individual’s underlying

personality and social makeup are more important

indicating his response and reaction to outside stress

People in highly stressful jobs do not necessanly

develop coronary artery disease.

It is my opinion that there is insufficient evidence to

establish causality between stress and coronary artery

disease. At this time, it is my opinion that psychosocial

stress is unlikely to cause coronary artery disease. As

Dr CLM stated, stress may be an “up and coming” risk

factor, but it remains controversial. Even IF stress

42a

played a role in RL’s heart attack, I believe its role is

minor in comparison to RL’s other coronary risk

factors. In his medical record, it is documented that RL

“smoked a pipe, but did not inhale” and that his

“father and mother died of heart disease (Riverview

Medical, Dr AK in 3/1994); in addition, RL has ”a

history of hypercholesterolemia and hypertension

(Medical Health Center Dr CP In 6/2000). RL is typical

of patients in Drs Lavie’s and Milani’s studies with

multiple CAD risk factors

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.