Citation Nr: 1108769 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 06-24 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1967, including service in Vietnam during the Vietnam War era. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In April 2009 the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in New York. The transcript of that hearing is of record. The matter was remanded back to the RO, via the Appeals Management Center (AMC) for additional development of the record in June 2009. Upon substantial completion of the requested development, the case was returned to the Board for appellate disposition. The agency of original jurisdiction (AOJ) substantially complied with the June 2009 remand orders and no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The Veteran had active service from December 1965 to September 1967 which included service in the Republic of Vietnam from September 1966 to May 1967 for which he was awarded a Vietnam Service Medal; therefore, exposure to Agent Orange is presumed. 2. The Veteran has a diagnosis of coronary artery disease and ischemic heart disease and is status post coronary artery bypass surgery. CONCLUSION OF LAW Coronary artery disease and/or ischemic heart disease is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 1131, 1310, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010); 75 Fed. Reg. 53,202 (Aug. 31, 2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist While this appeal was pending, there was a change in law which is pertinent to the Veteran's service connection claim. On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam War Era, for ischemic heart disease. While regulations to implement the Secretary's decision were pending, the Secretary, on November 20, 2009, directed the Board to stay action on all claims for service connection that could not be granted under current law but that potentially might have been granted based on the planned new presumptions of service connection for ischemic heart disease based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam War Era. On August 31, 2010, the Secretary published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish a presumption of service connection for ischemic heart disease based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam War Era. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). The final rule was effective August 31, 2010. However, the rule was identified as a major rule and, thus, the implementation of the rule was subject to the provisions of the Congressional Review Act (CRA). The CRA required an agency to wait 60 days before implementing a major rule to allow Congress the opportunity to review the regulation. On October 29, 2010, the Secretary issued a memorandum lifting the stay of appeals affected by the new herbicide-related presumptions. The memorandum noted that the CRA waiting period for the regulation expired on October 30, 2010, and accordingly, the stay of the adjudication of the affected claims was lifted effective October 30, 2010. The Board may therefore proceed with the adjudication of the appellant's claim of service connection for a heart disorder, to include coronary artery disease and ischemic heart disease. The grant of service connection for a heart disorder constitutes a complete grant of the benefits sought on appeal with respect to that issue. As such, any defect with regard to VA's duty to notify and assist the Veteran with the development of his claim is harmless error, and no further discussion of VA's duty to notify and assist is necessary. II. Service Connection - Heart Disease The Veteran seeks service connection for a heart disorder, to include coronary artery disease and ischemic heart disease. The Veteran has always maintained that his heart disease is secondary to the service-connected PTSD. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as coronary artery disease to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309. Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). According to 38 U.S.C.A. § 1116(f), for the purposes of establishing service connection for a disability or death resulting from exposure to an herbicide agent, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin or 2,4-dichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See also, 38 C.F.R. § 3.307(a)(6). Under 38 C.F.R. § 3.309(e), certain diseases and certain types of respiratory cancers, may be presumed to have resulted from exposure to certain herbicide agents such as Agent Orange. Ordinarily, the diseases listed in 38 C.F.R. § 3.309(e) shall become manifest to a degree of 10 percent or more at any time after discharge from service. Id. Thus, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, the Veteran must show that he served in the Republic of Vietnam during the Vietnam War Era. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). Even if the Veteran is not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that a veteran was not precluded under the Veterans' Dioxin and Radiation Exposure Compensation Standards Act from establishing service connection with proof of direct actual causation). However, where the issue involves a question of medical causation, competent evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). With respect to the claim that the Veteran in this case had a disability which was the result of Agent Orange exposure in service, the Veteran's DD Form 214 and service personnel records (SPRs) show that he had active service from December 1965 to December 1967 with service in the Republic of Vietnam from September 1966 to May 1967 for which he was awarded a Vietnam service medal. Therefore, exposure to Agent Orange may be presumed. However, the appellant must also show that the Veteran was diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e) to establish presumptive service connection based on exposure to Agent Orange. It is important to note that the diseases listed at 38 C.F.R. § 3.309(e) are based on findings provided from scientific data furnished by the National Academy of Sciences (NAS). The NAS conducts studies to "summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure." 64 Fed. Reg. 59,232-59,243 (Nov. 2, 1999). Reports from NAS are submitted at two-year intervals to reflect the most recent findings. Based on input from the NAS reports, the Congress amends the statutory provisions of the Agent Orange Act found at 38 U.S.C.A. § 1116 and the Secretary promulgates the necessary regulatory changes to reflect the latest additions of diseases shown to be associated with exposure to herbicides. The list of diseases presumed to be associated with exposure to herbicides used in Vietnam during the Vietnam Era included chloracne or other acneform disease consistent with chloracne; type 2 diabetes; Hodgkin's disease; Chronic lymphocytic leukemia (CLL); multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). The list was expanded in 2009 to include amyotrophic lateral sclerosis (ALS). See 74 Fed. Reg. 57,072-57,074 (Nov. 4, 2009). However, the appellant does not allege, nor does the record reflect, that the Veteran was diagnosed with or treated for ALS. Recently, VA amended 38 C.F.R. § 3.309(e) to include ischemic heart disease. 75 Fed. Reg. 53202 (August 31, 2010). The pertinent part of that amendment added the following to § 3.309(e): "Ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina)." 75 Fed. Reg. 53202, 53216 (August 31, 2010). This amended rule applies to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date. 75 Fed. Reg. 53202. The amended rule is applicable in this case as the appellant's claim was pending before VA on that date. For the purposes of 38 C.F.R. § 3.309(e), ischemic heart disease means any atherosclerotic heart disease resulting in clinically significant ischemia or requiring coronary revascularization. See 75 Fed. Reg. 53,205. Ischemic heart disease is "an inadequate supply of blood and oxygen to a portion of the myocardium." Id. As indicated above, the new regulations specifically enumerate atherosclerotic cardiovascular disease as a form of ischemic heart disease, subject to the presumptive provisions. The Veteran's claims file contains numerous private and VA treatment records showing a diagnosis of coronary artery disease, ischemic heart disease and status post coronary artery bypass grafting. As the Veteran is presumed to have been exposed to herbicides in service and has developed a form of ischemic heart disease, diagnosed as coronary artery disease, status post coronary artery bypass grafting, and ischemic heart disease, service connection is warranted on a presumptive basis. Because the claim of service connection for heart disease is granted on a presumptive basis, the Veteran's claim that his heart disease is secondary to the service-connected posttraumatic stress disorder (PTSD) need not be addressed. ORDER Service connection for a heart disorder, to include coronary artery disease and ischemic heart disease, is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs