Citation Nr: 1120731 Decision Date: 05/27/11 Archive Date: 06/06/11 DOCKET NO. 06-32 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for coronary artery disease, to include as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Montana Veterans Affairs Division WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from November 1967 to November 1969. This matter comes to the Board of Veterans' Appeals (Board) from a February 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) which denied service connection for coronary artery disease, which was claimed as secondary to PTSD. The Veteran testified before a Veterans Law Judge (VLJ) at Board hearings at the RO in April 2007 and by videoconference in April 2008. Transcripts of both hearings are of record. The VLJ who conducted the hearings is no longer working at the Board. The Veteran was given an opportunity to testify before another VLJ at a Board hearing, but declined this opportunity in December 2010. The Board previously remanded this claim in November 2008. At that time, it was noted that the service connection claim for coronary artery disease would be addressed on the merits, rather than as a claim to reopen based on new and material evidence, even though there was a previous denial of service connection for a heart condition in January 2002 by the RO. The Board noted that claims based upon distinctly and properly diagnosed diseases or injuries cannot be considered the same claim. See Ephraim v. Brown, 82 F.3d 399 (Fed.Cir.1996); Boggs v. Peake, 520 F.3d 1330 (2008). Since the present issue on appeal is characterized as service connection for coronary artery disease, this diagnosis is more specific than a general heart disorder, and qualifies as a separate diagnosis. The Board remanded the claim so that an etiology opinion could be provided addressing whether the Veteran's coronary artery disease was directly related to his military service or secondarily related to his PTSD. An opinion was subsequently provided addressing only the issue of whether there was a relationship between the Veteran's coronary artery disease and his PTSD, without addressing whether there was any relationship to service. However, because the benefits sought on appeal are granted below, no further development is necessary. While the case was in remand status, on October 13, 2009, in accordance with authority provided in 38 U.S.C.A. § 1116, the Secretary of Veterans Affairs announced his decision to establish new presumptions of service connection, based upon presumed exposure to Agent Orange and other herbicides used in the Republic of Vietnam during the Vietnam era, for three disabilities: ischemic heart disease, Parkinson's disease, and B-cell leukemias. On November 20, 2009, to avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims, the Secretary directed the Board to stay action on all claims for service connection that could not be granted under current law but might potentially be granted based on the planned new regulations. Chairman's Memorandum No. 01-09-25 implemented this stay. On August 31, 2010, the Secretary published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish such presumptions. 75 Fed. Reg. 53,202. 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 requires 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 notes 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. FINDINGS OF FACT 1. The record shows that the Veteran served in the Republic of Vietnam during the Vietnam era, and was released from active duty in November 1969. 2. The Veteran has been diagnosed with, and has undergone medical and surgical treatment since 1990 for, coronary artery disease. 3. The Veteran's coronary artery disease is now presumed by law to be related to his presumed exposure to herbicide agents in Vietnam. CONCLUSION OF LAW Coronary artery disease is presumed to have been incurred in service, as a result of in-service exposure to Agent Orange. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326(a) (2010). In view of the disposition herein, additional discussion of those procedures is unnecessary, as any defect in the notice or assistance provided to the Veteran constituted harmless error. II. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 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. This rule does not mean that any manifestation 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 identity 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). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Board notes that 38 C.F.R. § 3.310, above, the regulation which governs claims for secondary service connection, was amended during the pendency of this claim and appeal. 71 Fed. Reg. 52,744 (Sept. 7, 2006). Although it was expected that the intended effect of the amendment was to conform VA regulations to the Allen decision, the regulatory amendment effectively resulted in a change in the law. In this regard, while the overall intention of the amendment to 38 C.F.R. § 3.310(b) was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In addressing the imposition of this new evidentiary requirement, the regulatory comments cite to 38 U.S.C.A. § 501 as the supporting authority, and not Allen. See 71 Fed. Reg. at 52,744-45. The present case predates the regulatory change. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of secondary service connection may be made. In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, including cardiovascular-renal disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In addition to the foregoing, service connection can be presumed if a veteran was exposed to a herbicide agent during active service. By current regulation, presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; chronic lymphocytic leukemia; 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). 38 C.F.R. § 3.309(e) (2010). Most of 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. Presumptive service connection for these disorders as a result of Agent Orange exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that 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 . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). Pursuant to Section 3 of the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11, the Secretary of Veterans Affairs (Secretary) entered into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in Vietnam and various diseases suspected to be associated with such exposure. The NAS was to determine, to the extent possible, whether there was a statistical association between the suspect disease and herbicide exposure, taking into account the strength of the scientific evidence and the appropriateness of the methods used to detect the association; the increased risk of disease among individuals exposed to herbicides during the service in the Republic of Vietnam during the Vietnam era; and whether there is a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the suspect disease. The NAS was required to submit reports of its activities every two years. The Secretary, under the authority of the Agent Orange Act of 1991 and based on studies by the NAS, has determined that there is no positive association between exposure to herbicides and any condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also Notice, 61 Fed. Reg. 41,442-449, and 61 Fed. Reg. 57,586-589 (1996); Notice, 64 Fed. Reg. 59,232-243 (Nov. 2, 1999); Notice, 67 Fed. Reg. 42,600-608 (June 24, 2002); Notice, 72 Fed. Reg. 32,395-407 (June 12, 2007); 74 Fed. Reg. 21,258-260 (May 7, 2009). As noted above, the most recent issuance by the Secretary has added ischemic heart disease, Parkinson's disease, and hairy cell leukemia to the list of presumptive disabilities in the regulation. See Final Rule, 75 Fed. Reg. 53,202-216 (Aug. 31, 2010) (to be codified at 38 C.F.R. § 3.309(e)). The revised 38 C.F.R. § 3.309(e) indicates that the term "ischemic heart disease" includes, but is 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. For the purposes of this section, the term "ischemic heart disease" does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309, Note 3, 75 Fed. Reg. 53,202 (Aug. 31, 2010). Presumptive service connection for ischemic heart disease as a result of herbicide exposure is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that 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 . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). When a disease is first diagnosed after service but not within an applicable presumptive period, service connection may nevertheless be established by evidence demonstrating that disease was in fact incurred during service. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). If there is no presumptive service connection available, direct service connection can be established if the record contains competent medical evidence of a current disease process with a relationship to exposure to an herbicide agent while in military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; Combee at 1043-44. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that 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. III. Analysis Personnel records show that the Veteran served in the Republic of Vietnam from April 24, 1968, to April 15, 1969. Thus, he is presumed to have been exposed to herbicide agents during his service. See 38 U.S.C.A. § 1116(f). Private treatment records show the Veteran has a history of coronary artery disease since 1990. A March 1990 hospital discharge summary notes that he underwent coronary artery bypass, times three. He also was diagnosed with myocardial infarction. Subsequent private treatment records note continued treatment for this disability. The Veteran contends that his coronary artery disease is secondary to his PTSD disability. He actually contends that his PTSD caused him to smoke, which in turn caused his coronary artery disease. The medical examinations of record address whether or not smoking tobacco caused his PTSD and heart disease, and are mostly negative; but there also is some medical evidence of record which suggests that the Veteran's service-connected PTSD might have aggravated his coronary artery disease. An August 24, 2005, VA examination report shows he had panic attacks associated with his PTSD about twice a month, lasting one to two hours. He suffered from heart palpitations, chest pains, faintness or dizziness, etc. The service treatment records (STRs) also show an impression of functional heart disease in February 1968, which suggests a possible direct relationship to his service. A VA medical opinion was provided in December 2008 addressing whether or not the Veteran's coronary artery disease was related to his PTSD. The examiner found that it was more likely than not that the PTSD did not significantly worsen the progression of the coronary heart disease. An opinion on any direct relationship to service was not provided. Nonetheless, the record indicates that the Veteran's claim falls within the purview of the new Vietnam herbicide presumption for coronary heart disease. Specifically, he is presumed to have been exposed to herbicides in service and has a post-service diagnosis of coronary artery disease and myocardial infarction. There also is no affirmative evidence to the contrary in rebuttal of the presumed relationship between the coronary artery disease and service. Although the December 2008 VA examination report notes that the Veteran has other risk factors for coronary artery disease, including family history, dyslipidemia with low high-density lipids (HDLs), chronic obesity, and chronic hypertension, this is not enough to show affirmative evidence to the contrary as contemplated under 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(d). As noted above, the STRs also mention a finding of functional heart disease in February 1968. Therefore, the Board concludes there is a reasonable doubt raised, resolves such doubt in the Veteran's favor, and finds that service connection for his coronary artery disease is warranted. ORDER Entitlement to service connection for coronary artery disease is granted. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs