Citation Nr: 1228294	
Decision Date: 08/16/12    Archive Date: 08/21/12

DOCKET NO.  11-19 654	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in St. Paul, Minnesota


THE ISSUES

1. Entitlement to service connection for ischemic heart disease (IHD).

2. Entitlement to service connection for a heart disorder other than IHD, to include congestive heart failure (CHF) and aortic valve syndrome (AVS).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

A. R. Marra, Law Clerk



INTRODUCTION

The Veteran served on active duty from August 1966 to August 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Seattle, Washington.

The Board notes that the issue certified on appeal was entitlement to service connection for IHD.  Pertinent to this case, in a March 2004 rating decision, the Veteran was granted nonservice-connected pension for, among other things, CHF.  In October 2010, the RO sent the Veteran a letter alerting him that his case was identified as a "potential Nehmer class-member case" based on the addition of IHD to the list of diseases presumptively associated with exposure to certain herbicide agents used in Vietnam.  The RO determined that the Veteran's case was to be revisited in light of the addition of IHD to the list of presumptive diseases.  In the December 2010 rating decision, the RO denied service connection for IHD, on a presumptive basis.

The Board is cognizant of the fact that it is the responsibility of VA to consider alternate current conditions within the scope of the claim.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).  Here, as discussed below, the Veteran's post-service medical records contain diagnoses of various heart conditions such as CHF and AVS.  Given the procedural history of the case, the holding in Clemons, and the medical evidence of record, the Board has characterized the issues on appeal as including entitlement to service connection for IHD and service connection for a heart disorder other than IHD, as set forth on the title page of this decision.

(The decision below addresses the Veteran's claim of service connection for IHD. The question of service connection for a heart disorder other than IHD, to include CHF and AVS, is addressed in the remand that follows this decision.)



FINDING OF FACT

The Veteran does not have IHD.


CONCLUSION OF LAW

The Veteran does not have IHD that is the result of disease or injury incurred in or aggravated during active military service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011).  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).

Generally, establishing service connection requires medical or, in certain circumstances, lay 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 present disability.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). 

In addition, there are certain diseases that are associated with exposure to "herbicide agents" during active military, naval, or air service, and are thus presumed to have been incurred in or aggravated during active military service if the requirements of 38 C.F.R. § 3.307(a) (6) are met, even though there is no record of the disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied.  38 U.S.C.A. § 1116(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.309(e) (2011).  (In this context, the term "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962 and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. 38 C.F.R. § 3.307(a)(6)(i)).The Board observes that the regulations pertaining to diseases presumptively associated with herbicide exposure have been recently amended. 

On August 31, 2010, the Secretary published a final rule in the Federal Register amending 38 C.F.R. § 3.309(e).  See 75 Fed. Reg. 53,202.  The final rule, effective August 31, 2010, added hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and 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) to the list of diseases associated with exposure to certain herbicide agents.  A newly added Note 3 at the end of § 3.309 states that: "for 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(e) n.3.

Service incurrence may also be presumed for cardiovascular-renal disease if manifested to a compensable degree within a year of separation form qualifying military service.  38 C.F.R. §§ 3.307, 3.309.

At the outset, the Board notes that whether the Veteran served in Vietnam during the requisite time period is not at issue.  His DD Form 214 shows that he served on active duty from August 1966 to August 1968, and denotes Army Post Office (APO) 96312, located in Cam Ranh Bay, Vietnam.  As such, he is presumed to have been exposed during such service to an herbicide agent.  38 C.F.R. § 3.307(a)(6)(iii).

That being said, the salient point to be made is that the Veteran does not have a current diagnosis of IHD.  While the Board notes that the Veteran's post-service treatment records reflect diagnoses of various heart conditions such as CHF and AVS, he has not been diagnosed with IHD.  In fact, in a November 2010 VA examination, the examiner stated that the Veteran's medical history showed no evidence of coronary artery disease or ischemia.  Further, the examiner noted that IHD was not causing the Veteran's diagnosed CHF or AVS, and that "[t]here [was] no diagnosis of current or previous ischemic heart disease."  Moreover, records from the VA Medical Center in Minneapolis, Minnesota, dated in July 2008 and March 2011, specifically state that the Veteran does not have IHD.  

As stated above, the evidence of record fails to show that the Veteran has, at any point since filing his claim, had IHD.  The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such in-service events have resulted in a current disability.  See 38 U.S.C.A. § 1110, 1131 (West 2002).  Thus, without "competent evidence of a current disability," there can be no award of service connection.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see Degmetich v. Brown, 104 F.3d 1328, 1329, 1333 (Fed. Cir. 1997) (affirming that 38 U.S.C.A. § 1131 requires a presently existing disability in order for a veteran to be entitled to compensation under that statute); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Without evidence of a current diagnosis of IHD, there is simply no basis upon which to award service connection.  38 C.F.R. § §3.303(b); see Degmetich and Brammer, both supra.

In this regard, the Board is aware that in certain situations, lay evidence may be sufficient to diagnose a medical condition.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (discussing when lay evidence is sufficient to establish a diagnosis).  While the Veteran has asserted that he has a current diagnosis of IHD, his statements are not considered competent or credible evidence of a diagnosis because IHD is not the type of disability that a lay person is competent to diagnose.  Id.  On record is also a letter from R.W., R.N., who stated that she was writing the letter "as a friend-not in a professional capacity."  She noted that the Veteran was diagnosed with AVS and seemed to intimate that this was related to the Veteran's herbicide exposure.  As R.W., R.N. had never diagnosed the Veteran with IHD, her statements are not probative of a diagnosis of IHD.  Id.

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. §§ 5103, 5103A, (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(2011).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  The 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.  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  The VCAA notice requirements apply to all five elements of a service connection claim.  These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

In an October 2010 letter, the RO informed the Veteran that a claim of service connection for IHD would be considered in light of his earlier pension claim and the fact that IHD had been added to the list of diseases presumed to be due to herbicide exposure.  In that letter, the Veteran was specifically informed that he should submit evidence showing a diagnosis of IHD and any related records, such as statements from doctors, hospitals, and medical facilities showing the dates of treatment, findings, and diagnoses.  The letter also informed the Veteran that he could submit lay evidence in support of his claim.  The notice letter also informed him of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA would attempt to obtain on behalf of the claimant and included the notice elements required by Dingess, supra, for how VA determines disability ratings and effective dates. 

The Veteran has not disputed the contents of the VCAA notice in this case.  Further, the Board finds that the October 2010 notice letter complies with the requirements of 38 U.S.C.A. § 5103(a), and afforded the Veteran a meaningful opportunity to participate in the development of his claim.  Thus, the Board is satisfied that the duty to notify requirements under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) were satisfied.

Regarding VA's duty to assist, the AOJ obtained the Veteran's service treatment records (STRs), service personnel records, and post-service medical records.  The Veteran has not identified any additional pertinent medical records not obtained and associated with the claims folder, and the Board is aware of none.  Additionally, the Veteran was given a November 2010 VA examination in which the VA examiner indicated that the claims folder had been reviewed, and took into account the Veteran's subjective complaints as well as his reported military history.  Furthermore, this examination report contains sufficient information to make a determination regarding the Veteran's current claim.  The Board therefore concludes that the VA examination report is adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).


ORDER

Service connection for IHD is denied.


REMAND

As noted in the introduction, it is the responsibility of VA to consider alternate current conditions within the scope of any claim.  See Clemons, supra.  As the Veteran's post-service treatment records contain diagnoses of several heart disorders such as CHF and AVS, the Board finds that the issue of entitlement to service connection for a heart disorder other than IHD must also be addressed.

Notably, however, the Board observes that the Veteran has not been provided with a VCAA notice letter denoting the requirements for establishing direct service connection for a heart disorder other than IHD.  Additionally, this issue has not been considered by the agency of original jurisdiction (AOJ).  The Board finds, therefore, that the matter must be remanded for the Veteran to be given proper notice of the requirements for establishing service connection on a direct basis and for the AOJ to address the matter in the first instance.

Accordingly, the case is REMANDED to the AOJ for the following action:

1.  Send a VCAA notice letter to the Veteran and his representative.  The letter should notify the Veteran of the information and evidence necessary to substantiate a claim of service connection for a heart disorder other than IHD. The Veteran and his representative should be given an opportunity to respond to the notice, and any additional information or evidence received should be associated with the claims file.

2.  After completing the requested actions and any additional notification and/or development deemed warranted, adjudicate the issue of entitlement to service connection for a heart disorder other than IHD, to include congestive heart failure and aortic valve syndrome.  If a benefit sought on appeal is not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response.

Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted.  No action is required of the Veteran until he is notified.  The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This case must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B 7112 (West Supp. 2011).



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs