Citation Nr: 1123553	
Decision Date: 06/21/11    Archive Date: 06/28/11

DOCKET NO.  06-38 153	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for a heart disorder, to include an enlarged heart and ischemic heart disease, claimed as secondary to in-service herbicide exposure.


REPRESENTATION

Appellant represented by:	Kathy A. Lieberman, Attorney-At-Law


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

H. Yoo, Associate Counsel


INTRODUCTION

The Veteran had active service from March 1964 to March 1967 and from March 1968 to March 1985.

This matter come before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs Atlanta, Georgia, Regional Office (RO).

A videoconference hearing was held before the undersigned Veterans Law Judge at this RO in April 2009.  A transcript of that hearing has been associated with the claims file.

The first issue which was certified for appellate review was service connection for a disorder manifested by an enlarged heart.  As reflected on the title page of this decision, the Board has recharacterized the issue to encompass all types of heart disease.  A claimant's identification of the benefit sought does not require any technical precision.  Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007) ("It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability, .... [and] it is the Secretary who knows the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission.")  A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability.  Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of that claim"); 38 C.F.R. § 3.159(c)(3).  Thus, given the Veteran's description of his claim, the Board finds that recharacterization of the issue of entitlement to service connection for a heart disorder, to include ischemic heart disease, is most appropriate and results in no prejudice to the Veteran.

Additionally, it is noted that in a September 2010 decision, the Board denied the Veteran's appeal.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans' Claim (Court).  In the March 2011 Order, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's September 2010 decision and remanding the matter to the Board for further consideration.


FINDINGS OF FACT

1. The Veteran served in Vietnam during the Vietnam era, and is presumed to have been exposed to Agent Orange or other herbicides while in military service.

2. The Veteran is currently diagnosed with ischemic heart disease (and coronary artery disease), which is a disease associated with exposure to certain herbicide agents.


CONCLUSION OF LAW

The Veteran has ischemic heart disease that is presumed to have been incurred during active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any 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).  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; and (3) that the claimant is expected to provide, in accordance with 38 C.F.R. § 3.159(b)(1).

In view of the Board's favorable decision and full grant of the benefit sought on appeal, further assistance is unnecessary to aid the Veteran in substantiating the claim.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Where a veteran served continuously for ninety (90) days or more during a period of war and cardiovascular renal disease, to include hypertension, becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.

There also exists a presumption for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 C.F.R. § 3.309(e).  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acne form disease consistent with chloracne, Type 2 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, and soft-tissue sarcoma other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma.  Id.

On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of Veterans Affairs (Secretary) announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias.  On November 20, 2009, the Secretary directed the Board to stay action on all claims for service connection that could not be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era.  On August 31, 2010, VA published a final rule amending 38 C.F.R. § 3.309(e) to add ischemic heart disease, Parkinson's disease, and B cell leukemias to the list of diseases associated with exposure to certain herbicide agents.  75 Fed. Reg. 53202.  On November 1, 2010, Chairman's Memorandum No. 01-10-37 was issued, which lifted the stay of the adjudication of cases affected by the new regulations establishing a presumption of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias.

The Veteran contends that his currently-shown heart disorder is related to his active military service.

The Veteran's personnel records reflect that he served in the Republic of Vietnam.  Specifically, the Veteran was assigned to the 4th Tactical Fighter Squadron at the DaNang Air Base, from April 9, 1969, to April 7, 1970.  See Citation to Accompany the Award of the Air Force Commendation Medal to Arthur R. Meeks.  As there is no affirmative evidence to the contrary, he is presumed to have been exposed to herbicides.

According to the evidence in the record, the Veteran underwent cardiac catheterization in September 2003 for severe coronary artery disease.  See Santilla Regional Medical Center records, dated September 2003.  Prior to surgery, the Veteran reported that he "has previously been catheterized in 1987 in Wyoming and was told he had mild coronary artery disease at that time."  In addition, the record indicates that the Veteran "did undergo catheterization while in [Santilla Regional Medical Center in Waycross, Georgia] per Dr. Bell, showed and ejection fraction of 78%, diffuse coronary artery disease with severe left anterior descending coronary artery disease with proximal lesion of 40% and mid distal 80% stenosis."  See St. Vincent Medical Center record, dated September 2003.

Additional treatment records from Santilla Regional Medical Center and St. Vincent's Medical Center from September 2003 to March 2004 report the Veteran was treated for a coronary artery disease, and various symptoms such as chest pain, however, there is no indication his condition started during service or is etiologically related to his military service.

In April 2010, the Veteran was afforded a VA examination.  After review of the Veteran's medical treatment records and physical examination, the examiner stated the Veteran "has no objective evidence of heart disease while on active service... the [V]eteran's current cardiovascular condition was no related to his claimed 'enlarged heart' condition while on active service."  However, the examiner noted "if the [V]eteran's Agent Orange exposure status is conceded, then his claim for ischemic heart disease should be considered in that context as the [V]eteran does have evidence of ischemic heart disease with a coronary bypass surgery in 2003."  See VA examination, dated April 2010.

Accordingly, the competent medical evidence of record shows that the Veteran has a current diagnosis of coronary artery disease/ischemic heart disease.  As he is entitled to a presumption of service connection for ischemic heart disease, service connection for such disease is warranted.  See 38 C.F.R. §§ 3.307, 3.309; 75 Fed.Reg. 53216 (August 31, 2010).


ORDER

Entitlement to service connection for a heart disorder, to include an enlarged heart and ischemic heart disease, claimed as secondary to in-service herbicide exposure, is granted.




____________________________________________
J. A. MARKEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs