Citation Nr: 1127552 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 06-00 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a heart disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to May 1969, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection a heart disability. The Veteran's claims file is now in the jurisdiction of the North Little Rock, Arkansas RO. In October 2009, the Veteran testified during a hearing before the undersigned Acting Veterans Law Judge at the RO; a transcript of that hearing is of record. Previous Stay 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 era, for three new conditions: ischemic heart disease (to include coronary artery disease), Parkinson's disease, and B cell leukemias. As required by 38 U.S.C. § 1116, VA issued regulations through notice and comment rule-making procedures to establish the new presumptions of service connection for those diseases. On November 20, 2009, the Secretary of Veterans Affairs directed the Board to stay action on all claims for service connection that could not be granted under current law but that potentially could 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. Accordingly, and pursuant to the Secretary's directive, the Board stayed the current appeal. On August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to certain herbicide agents. 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 waiting period for the regulation expired on October 30, 2010, and accordingly, the stay of the adjudication of the affected claims is lifted effective October 30, 2010. Thus, the Board will proceed to adjudicate the current appeal. Notably, a January 2010 Board decision denied the Veteran's claim of service connection for hypertension. 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 herbicide while in military service. 2. It is not shown that the Veteran has, or during the pendency of this claim has had, a heart disability (other than other than hypertensive vascular disease (HVD)). CONCLUSION OF LAW Service connection for a heart disability other than HVD (to include as secondary to service-connected PTSD) is not warranted. 38 U.S.C.A. §§ 1110, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Duties to Notify and Assist 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 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). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case (SSOC)). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In this case, a September 2004 letter advised the Veteran of VA's duties to notify and assist in the development of the claim prior to its initial adjudication. 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. While he was not advised of disability rating and effective date criteria, he is not prejudiced by lack of such notice (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-91 (2006)), as rating and effective date criteria have no significance unless the claim is allowed, and the decision below does not do so. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. VA's duty to notify is met. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). In this case the Veteran was afforded a VA examination in January 2005. The examination is adequate as the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noted pertinent history and all findings necessary for a proper determination in the matter, and explained the rationale for the opinion offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. In light of the foregoing, the Board finds that overall; there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. B. Legal Criteria, Factual Background, and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, certain chronic diseases, including cardiovascular disease, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Unless there is affirmative evidence to the contrary, a veteran who served on active duty in the Republic of Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange or similar herbicide. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.313a. If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin's disease, 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 sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). For purposes of this section, the term "acute and subacute peripheral neuropathy" means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset. 38 C.F.R. § 3.309(e), Note 2. 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, except that chloracne or other acneform disease consistent with chloracne and porphyria cutanea tarda shall have become manifest to a degree of 10 percent or more within a period of one year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). 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). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. At the outset, the board notes that the Veteran's service records reflect that he had active duty in the Republic of Vietnam, and, as such, he was presumptively exposed to herbicides therein. 38 U.S.C.A. § 1116. Additionally, service connection for PTSD is in effect. It is also noteworthy that the Veteran has a diagnosis of HVD. As noted above, the January 2010 Board decision denied service connection for hypertension. Hence, the current claim on appeal for heart disability is for heart disease other than HVD and associated hypertension. The threshold matter that must be addressed here (as in any claim seeking service connection) is whether or not there is competent evidence that the Veteran actually has the disability for which service connection is sought (a heart disability other than HVD). Whether service connection is claimed on direct, presumptive, or any other basis, a necessary element for establishing such a claim is the existence of a current disability. In the absence of proof of such disability, there is no valid claim for service connection. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin v. West, 155 F.3d (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to the heart/cardiovascular system. Service separation examination did not note any complaints or disability related to the heart. Furthermore, the evidence of record does not show that the Veteran has, or during the appeal period has had, a heart disability other than HVD. January 2005 VA examination diagnosed HVD and hypertension, for which the Veteran was previously denied service connection. Later VA outpatient treatment records show that the Veteran was without chest pain, palpitations, or dyspnea on exertion. The evidence of record does not reveal any other diagnosed heart disability or symptoms suggestive of such. In March 2004 the Veteran presented with palpitations and an abnormal ECG; echocardiogram was recommended. He returned in April 2004 and had an abnormal EKG; cardiac catheterization was recommended. Notably, the Veteran's March 2004 cardiac catheterization was negative with no evidence of obstruction. On October 2004 VA examination the Veteran's heart was "regular." The January 2005 VA examiner noted that the Veteran's previous testing revealed normal cardiac condition and normal heart examination. At the October 2009 Travel Board hearing the Veteran testified that he did not know what kind of heart condition he had but that he had chest pain and was referred to a specialist for cardiac catheterization. He noted that he was not treated on active duty for a heart condition. There has been no evidence received that shows or suggests the presence of a heart disability other than HVD, and the Veteran has not identified any pertinent evidence in the matter that remains outstanding. Consequently, the threshold requirement necessary to substantiate the claim of service connection for such disability based on presumptive, direct, and secondary theories of entitlement is not met. Without a diagnosis of a heart disability, there is no valid claim of service connection for such disability. See Brammer, 3 Vet. App. at 225. The Board acknowledges that the Veteran is competent to describe symptoms that are capable of lay observation (e.g., chest pain); however, it finds the medical evidence of record to be most probative in the matter of whether the Veteran has a currently diagnosed heart disability other than HVD as that is a medical question that is not capable of resolution through lay observation. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). Significantly, a heart disability involves an internal disease process, would be diagnosed/confirmed through diagnostic studies, and is not the type of disability which would be capable of lay observation, as contrasted with the situations contemplated by Jandreau and Barr. Overall, the preponderance of the evidence is against the Veteran's claim of service connection for a heart disability on all theories of entitlement, and this claim must be denied. 38 U.S.C.A. § 5107(b) is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. ORDER Service connection for a heart disability to include as secondary to service-connected PTSD is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs