Citation Nr: 0912042 Decision Date: 04/01/09 Archive Date: 04/10/09 DOCKET NO. 06-08 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for coronary artery disease (claimed as secondary to Agent Orange exposure). 2. Entitlement to service connection for hypertension (claimed as secondary to Agent Orange exposure). 3. Entitlement to service connection for peripheral vascular disease (PVD) with carotid stenosis (claimed as secondary to Agent Orange exposure). 4. Entitlement to service connection for abdominal aortic aneurysm (claimed as secondary to Agent Orange exposure). 5. Entitlement to service connection for gastroesophogeal reflux disease (GERD) (claimed as secondary to Agent Orange exposure). 6. Entitlement to service connection for renal insufficiency (claimed as secondary to Agent Orange exposure). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The appellant served on active duty from July 1964 to July 1967. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The appellant is informed that the Department is considered a revision of the "Agent Orange" presumptive disorders. In the event of that change, he is invited to re-file a claim. FINDINGS OF FACT 1. Coronary artery disease is not attributable to service, and is not shown in the initial post separation year; coronary artery disease is not attributable to Agent Orange exposure. 2. Hypertension is not attributable to service, and is not shown in the initial post separation year; hypertension is not attributable to Agent Orange exposure. 3. Peripheral vascular disease with carotid stenosis is not attributable to service, and is not shown in the initial post separation year; peripheral vascular disease with carotid stenosis is not attributable to Agent Orange exposure. 4. Abdominal aortic aneurysm is not attributable to service, and is not shown in the initial post separation year; abdominal aortic aneurysm is not attributable to Agent Orange exposure. 5. GERD is not attributable to service, to include Agent Orange exposure. 6. Renal insufficiency is not attributable to service, and is not shown in the initial post separation year; renal insufficiency is not attributable to Agent Orange exposure. CONCLUSIONS OF LAW 1. Coronary artery disease was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; coronary artery disease is not proximately due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 2. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; hypertension is not proximately due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 3. Peripheral vascular disease with carotid stenosis was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; peripheral vascular disease is not proximately due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 4. Abdominal aortic aneurysm was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; abdominal aortic aneurysm is not proximately due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). 5. GERD was not incurred in or aggravated by service; GERD is not proximately due to herbicide exposure. 38 U.S.C.A. §§ 1110, 1116, 1131, (West 2002); 38 C.F.R. § 3.303 (2008). 6. Renal insufficiency was not incurred in or aggravated by service, and may not be presumed to have been incurred therein; renal insufficiency is not proximately due to herbicide exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and 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. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b). Notice should be provided at the time that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006).at 119 (2004). This timing requirement applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra. The Board finds that the VCAA letter sent to the appellant in May 2004 essentially complied with statutory notice requirements as outlined above. VA notified the appellant of the evidence obtained, the evidence VA was responsible for obtaining, and the evidence necessary to establish entitlement to the benefits sought including the types of evidence that would assist in this matter. However, notice of the disability rating and effective date elements was not provided until March 2006, after the initial rating decision. This is error and presumed prejudicial to the appellant unless VA can demonstrate otherwise. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In this case, the Board finds that there is no prejudice to the appellant in this timing error because the claim was subsequently readjudicated in March 2006. VA sent the appellant Supplemental Statements of the Case dated the same notifying him of the actions taken and evidence obtained or received. As such, the appellant was afforded due process of law. The appellant has not been deprived of information needed to substantiate his claim and the very purpose of the VCAA notice has not been frustrated by the timing error here. Also, the Board notes that the appellant has been represented throughout his appeal by an accredited Veterans Service Organization. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). VA has also satisfied its duty to assist the appellant under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. Service and VA treatment records have been associated with the claims folder. VA afforded the appellant an opportunity to appear for a hearing. The Board acknowledges that the appellant has not been afforded a VA medical examination on the claimed disorders. However, the Board finds that a VA examination is not necessary in order to decide this matter. Two pivotal Court cases exist that address the need for a VA examination, Duenas v. Principi, 18 Vet. App. 512 (2004) and McClendon v. Nicholson, 20 Vet App. 79 (2006). In McClendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. Id. at 81. In Duenas, the Court held that a VA examination is necessary when the record: (1) contains competent evidence that the veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. Here, the appellant's service medical records are devoid of any complaints or abnormal pathology typically associated with the claimed disorders. Also, the Board finds that there is no evidence of continuity of symptoms since service and no reliable evidence otherwise showing that the claimed disorders were incurred in service or are due to herbicide exposure in service. Moreover, there is no reliable evidence linking the appellant's currently shown disabilities to either service or herbicide exposure. The Board fully accepts the existence of the claimed disabilities. Therefore, a VA medical examination to establish uncontroverted facts is not warranted. The record is adequate to establish the existence of current disability and further examination is not warranted. See 38 C.F.R. § 3.159(c)(4)(i). The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the appellant, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary). Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service Connection Initially, the Board notes the appellant served in Vietnam and exposure to herbicide agents (Agent Orange) is presumed. However, he does not assert that his claimed disorders are a result of combat and, therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Cardiovascular-renal disease, to include hypertension shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f). Moreover, the diseases listed at 38 C.F.R. § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, with an exception not applicable to this case. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(ii). As the appellant has not claimed a disability for which presumptive service connection based on herbicide exposure is established, the Board finds that the presumptive regulations regarding exposure to Agent Orange are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). However, even though the presumptive service connection is not warranted, the appellant is not precluded from establishing service connection for the claimed disabilities on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1041- 42 (Fed. Cir. 1994). In this case, the appellant contends that he has coronary artery disease, hypertension, PVD with carotid stenosis, abdominal aortic aneurysm, GERD, and renal insufficiency due to Agent Orange exposure. The evidence of record includes service treatment records and VA treatment records dated since 1992. Service treatment records are negative for coronary artery disease, hypertension, PVD with carotid stenosis, abdominal aortic aneurysm, GERD, and renal insufficiency. These records reflect no abnormal pathology or complaints associated with the claimed disabilities. Service separation examination dated June 1967 reflects normal clinical findings, with the exception of the "spine, other musculoskeletal." The heart, vascular system, abdomen and viscera were normal. He denied a history of shortness of breath, pain or pressure in his chest, palpitations, high or low blood pressure. His pressure was recorded as112/86. Also, none of the claimed conditions are shown within the initial post separation year or soon after service discharge. The claimed disabilities are first shown more than 30 years after service discharge. VA treatment records reflect diagnoses for heart disease and hypertension in 1992. When seen in October 1992, it was established that he had a history of coronary artery disease with myocardial infarction. He had been hospitalized in February 1992 for chest pain. He had an essentially negative medical history until three days prior to admission. He was felt to have had a remote myocardial infarction. GERD is first shown in 2002 and abdominal aortic aneurysm is shown in 2003. In March 2003, the appellant underwent a VA Agent Orange Registry Examination. The report of examination reflects diagnoses to include coronary artery disease, hypertension, PVD since 2004, abdominal aortic aneurysm, GERD, and renal insufficiency. No opinion was expressed on the etiology of the disabilities found. In weighing the evidence of record, the Board concludes that the preponderance of the evidence is against service connection for coronary artery disease, hypertension, PVD with carotid stenosis, abdominal aortic aneurysm, GERD, and renal insufficiency. First, none of the claimed disorders are subject to presumptive service connection based on Agent Orange exposure. Second, the currently diagnosed cardiovascular-renal diseases are not shown during service or within the initial post separation year. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137. Rather, the separation examination disclosed that the heart, vascular system, abdomen and viscera were normal and he denied a pertinent history at time of separation. Third, the appellant has not established continuity of symptomatology. The most probative evidence establishes that when seen in 1992, there was a relatively recent history. Although there was a report of a remote infarction, nothing suggests that such was during or shortly after service. Fourth, the evidence of record does not attribute the onset of the claimed disabilities to service, or Agent Orange exposure. (The Board again notes that in the event of a regulatory change, the appellant should re-file a claim.) The appellant asserts that the VA medical records show a relationship between Agent Orange exposure and his currently diagnosed coronary artery disease, hypertension, PVD with carotid stenosis, abdominal aortic aneurysm, GERD, and renal insufficiency. However, having carefully reviewed the evidence, the Board finds that there are no medical opinions expressing that the claimed disorders are related to Agent Orange exposure. The Board notes that, while the disorders were diagnosed on recent VA Agent Orange Registry Examination, this does not equate with a medical finding that the conditions are attributable to herbicide exposure. Additionally, the Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). However, here, the Board finds that the appellant is not competent to express an opinion on whether a disability is attributable to Agent Orange exposure. Whether an etiological relationship exists between herbicide exposure and onset of disability many years subsequent thereto is a complex medical matter, unlike a diagnosis of a simple condition such as a broken leg. As such, lay opinion has diminished probative value in this context. Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for coronary artery disease (claimed as secondary to Agent Orange exposure) is denied. Service connection for hypertension (claimed as secondary to Agent Orange exposure) is denied. Service connection for PVD with carotid stenosis (claimed as secondary to Agent Orange exposure) is denied. Service connection for abdominal aortic aneurysm (claimed as secondary to Agent Orange exposure) is denied. Service connection for GERD (claimed as secondary to Agent Orange exposure) is denied. Service connection for renal insufficiency (claimed as secondary to Agent Orange exposure) is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs