Citation Nr: 1304583 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 09-15 385A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a heart disability, to include ischemic heart disease and coronary artery disease, to include as due to herbicide exposure and as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for supraventricular tachycardia, to include as due to herbicide exposure and as secondary to service-connected PTSD. 3. Entitlement to service connection for a bilateral hearing loss disability. 4. Entitlement to service connection for tinnitus. 5. Whether new and material evidence was received to reopen the claim for service connection for varicose veins. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1963 to June 1983. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which denied the Veteran's claims. The Board notes that the Veteran submitted evidence pertaining to his heart disability, bilateral hearing loss, and tinnitus claims which was accompanied by a waiver of local consideration. This waiver is contained in the Veteran's claims folder. See 38 C.F.R. §§ 19.9, 20.1304(c) (2012). The Board also notes that the Veteran filed a notice of disagreement (NOD) with a January 2006 rating decision awarding a 30 percent disability rating for service-connected posttraumatic stress disorder (PTSD). He was thereafter awarded a 70 percent disability rating for the service-connected PTSD in a rating decision dated February 2009. Additionally, his increased rating claim was readjudicated in a February 2009 statement of the case (SOC) along with the heart disability, bilateral hearing loss disability, and tinnitus claims currently on appeal. He thereafter filed a VA Form 9 in May 2009, in which he checked box in section 9.A. of the form indicating a desire to appeal all issues that were shown on the statement of the case. However, the Veteran also specifically stated in the VA Form 9 that he was satisfied with the ratings assigned and wished to withdraw the increased rating claim. The United States Court of Appeals for Veterans Claims (Court) recently held that VA must seek clarification when a submission is ambiguous as to the appellant's intent. Evans v. Shinseki, 25 Vet. App. 7 (2011). In that case, the appellant checked box 9.A. on his VA Form 9, but then went on to specifically list three of the six issues which had been addressed in the SOC. Unlike in Evans, in this case, the appellant checked box 9.A., but then, in the same area of the form, specifically stating that he wished to withdraw his increased rating claim, noting "I am satisfied with the grant [of] 70 percent and is no longer an issue." Accordingly, that issue is not in appellate status and will be discussed no further herein. See Archbold v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA]. The above-referenced January 2006 rating decision also denied the Veteran's claim of whether new and material evidence was received to reopen the claim for service connection for varicose veins. In a November 2006 statement, the Veteran expressed his disagreement with that decision. A SOC pertaining to this issue has yet to be issued by the RO. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. The Board has reviewed the Veteran's claims folder and the record maintained in the Virtual VA paperless claims processing system. The issues of whether new and material evidence was received to reopen the claim for service connection for varicose veins and entitlement to service connection for a bilateral hearing loss disability and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The Veteran has a current diagnosis of mild ischemic heart disease that has not been disassociated from his presumed exposure to herbicides in the Republic of Vietnam during the Vietnam War era. 3. Coronary artery disease has not been disassociated with the Veteran's diagnosed ischemic heart disease. 4. The Veteran's diagnosed supraventricular tachycardia has not shown to have occurred in service and has not shown to be associated with his ischemic heart disease or service-connected PTSD. CONCLUSIONS OF LAW 1. The Veteran's ischemic heart disease and coronary artery disease is presumed to have been incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. The Veteran's supraventricular tachycardia was not incurred in or aggravated by active military service or otherwise related to his service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks entitlement to service connection for a heart disability, to include as due to herbicide exposure and service-connected PTSD. In the interest of clarity, the Board will discuss certain preliminary matters. The issue on appeal will then be analyzed and a decision rendered. The Veterans Claims Assistance Act of 2000 The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also defines the obligations of VA with respect to its statutory duty to assist a claimant in the development of a claim. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). In the case at hand, the record reflects that the originating agency provided the Veteran with the required notice by a letter mailed in May 2005. The Board further notes that the Veteran received proper notice as to degree of disability and effective date in a June 2010 letter, as required by the decision of the United States Court of Appeals for Veterans Claims (the Court) in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the June 2010 letter pertaining to the effective-date element of the claim was provided after the initial adjudication of the claim, the Board finds that the Veteran has not been prejudiced by the timing of this letter. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim in February 2010 and March 2012 supplemental statements of the case (SSOC). See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. Moreover, with regard to the Veteran's ischemic heart disease claim, the Board finds that any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's grant of the benefit sought on appeal. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. As discussed below, the Board is granting the Veteran's ischemic heart disease claim. It is not the Board's responsibility to assign a disability rating or an effective date in the first instance. The RO will be responsible for addressing any notice defect with respect to the assignment of an initial disability rating and/or effective date when effectuating the award, and the Board is confident that the Veteran will be afforded appropriate notice under Dingess. In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law affords that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In the instant case, the Board finds reasonable efforts have been made to assist the Veteran in obtaining evidence necessary to substantiate his claim. There is no reasonable possibility that further assistance would aid in substantiating the claim. The pertinent evidence of record includes the Veteran's statements, service treatment records, as well as VA and private treatment records. The Veteran was afforded a VA examination in April 2011 with an addendum obtained in May 2011. The examination report reflects that the Veteran was interviewed and examined, his past medical history was reviewed, and his claims folder was reviewed. As will be discussed below, the Board finds that the VA examination and addendum is inadequate for evaluation purposes with respect to the Veteran's ischemic disease claim. However, the Board finds that the VA examination and addendum are adequate for evaluation purposes with regard to the Veteran's supraventricular tachycardia claim. See 38 C.F.R. § 4.2 (2012); 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]. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further action pursuant to the VCAA need be undertaken on the Veteran's behalf. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to present evidence and argument in support of his claim. He has retained the services of a representative. On his May 2009 substantive appeal [VA Form 9], the Veteran declined the option of testifying at a personal hearing. Accordingly, the Board will proceed to a decision as to the issue of entitlement to service connection for a heart disability. Service connection for a heart disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and cardiovascular disease becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in 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, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). In some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service, even though there is no evidence of that disease during the period of service at issue. 38 U.S.C.A. § 1116(a) (West 2002); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2012). A veteran who served in the Republic of Vietnam during the period from January 9, 1962 to 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) (West 2002). Diseases associated with such exposure are set forth in 38 C.F.R. § 3.309(e), which has recently been amended to include ischemic heart disease. Ischemic heart disease, as defined in the regulation, 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. See 75 Fed. Reg. 53216 (Aug. 31, 2010). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record reflects that the Veteran served in the Republic of Vietnam during his active duty from June 1967 to July 1968 and from January 1970 to December 1970. A private tomography imaging report of the Veteran's chest dated October 2006 documented results including post stress left ventricular ejection fraction calculated at 79 percent suggesting mild inferior wall ischemia. Furthermore, a cardiac catheterization report dated August 2011 documented findings including left anterior descending artery disease, distal left anterior descending artery disease, and large circumflex artery. The Board finds that these results indicate a current diagnosis of ischemic heart disease. The Board notes that the Veteran was provided a VA cardiovascular examination in April 2011. Although the VA examiner rendered a diagnosis of ischemic heart disease, it is unclear as to whether this diagnosis was based on examination of the Veteran or only a history reported by the Veteran. Pertinently, the examiner did not report whether the Veteran's claims folder was reviewed. Moreover, in an addendum dated May 2011, another VA examiner reviewed the Veteran's claims folder and opined that the Veteran did not suffer from ischemic heart disease. The examiner further reported that the Veteran's diagnosed supraventricular tachycardia was not associated with ischemic heart disease. The examiner's rationale for her finding was based on a review of a stress test dated November 2005 which revealed no clear evidence of ischemia, and that previous stress tests of record were normal. Crucially, however, the examiner did not review the October 2006 and August 2011 private treatment reports indicating a diagnosis of ischemic heart disease. Indeed, neither of these reports were associated with the Veteran's claims folder at that time. As such, the Board finds that the VA examination report with addendum is inadequate for evaluation purposes with regard to whether the Veteran evidences a current diagnosis of ischemic heart disease. The Board further finds the October 2006 and August 2011 private treatment reports to be of greater probative value than the VA examination report, and finds that the evidence as a whole supports a finding that the Veteran has a diagnosis of ischemic heart disease. As noted above, to establish service connection for a disease presumed associated with exposure to herbicide agents, such as ischemic heart disease, it need only be shown that the Veteran served on land or in the inland waterways of the Republic of Vietnam during the Vietnam era. Given that the record reflects that the Veteran physically served in the Republic of Vietnam, his exposure to Agent Orange during his active service is presumed. Thus, the Veteran's diagnosed ischemic heart disease is presumed to be associated with his in-service herbicide exposure. There is not of record the requisite clear and convincing evidence to rebut this presumption. As a result, the Board finds that the evidence supports a grant of service connection for ischemic heart disease on a presumptive basis as a result of herbicide exposure. On the other hand, the Board finds that service connection is not warranted for the Veteran's supraventricular tachycardia. In so finding, the Board notes that the competent and probative evidence is absent any indication that supraventricular tachycardia has been shown to have occurred in service or has shown to be associated with his ischemic heart disease or service-connected PTSD. Pertinently, as discussed above, the May 2011 VA examiner reported after review of the Veteran's claims folder that his diagnosed supraventricular tachycardia was not associated with ischemic heart disease. The examiner's rationale for her finding was based on a review of a stress test dated November 2005 which revealed no clear evidence of ischemia, and that previous stress tests of record were normal. There is no competent and probative evidence to the contrary with regard to whether the Veteran's supraventricular tachycardia is related to his ischemic heart disease or any other service-connected disability including PTSD. Accordingly, the preponderance of the evidence is against the claim of service connection for supraventricular tachycardia. ORDER Entitlement to service connection for a heart disability, to include ischemic heart disease and coronary artery disease, to include as due to herbicide exposure is granted. Entitlement to service connection for supraventricular tachycardia, to include as due to herbicide exposure and as secondary to service-connected PTSD is denied. REMAND Service connection for bilateral hearing loss disability and tinnitus The Veteran contends that service connection is warranted for a bilateral hearing loss and tinnitus. In this case, the Board notes that the Veteran was afforded a VA examination in February 2006 in connection with his claim for service connection for hearing loss and tinnitus. The examiner conceded noise exposure in service, and noted that the Veteran's retirement examination from service in March 1983 indicated normal pure tone thresholds from 500 Hz through 6000 Hz in both ears. Based on the finding that the Veteran's March 1983 retirement audiological examination indicated normal results, the examiner opined that the Veteran's bilateral hearing loss disability and tinnitus were not caused by his military noise exposure. However, the Board notes that the absence of in-service evidence of a hearing disability during service (i.e., one meeting the requirements of 38 C.F.R. § 3.385) is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). The Veteran has contended that he was exposed to acoustic trauma during his period of service and that this was the injury sustained from which his bilateral hearing loss disability and tinnitus resulted. The Veteran is considered competent to relate a history of noise exposure during service. See 38 C.F.R. § 3.159(a)(2). In addition, the February 2006 VA examination found the Veteran to have a bilateral hearing loss disability by VA standards. See 38 C.F.R. § 3.385. Nevertheless, the February 2006 VA examiner provided an opinion based on the fact that the Veteran was not shown to have hearing loss in service. He did not specifically address whether the Veteran's hearing loss was otherwise causally or etiologically related to his military service, including noise exposure. The United States Court of Appeals for Veterans Claims (Court) has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any bilateral hearing loss disability or tinnitus that may be present. Service connection for varicose veins As was described in the Introduction above, in January 2006 the RO denied the Veteran's claim of whether new and material evidence was received to reopen the claim for service connection for varicose veins. The Veteran has since expressed disagreement with that decision. See a statement from the Veteran dated November 2006 In Manlincon, supra, the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Thus, the agency of original jurisdiction must issue a SOC as to the Veteran's claim of whether new and material evidence was received to reopen the claim for service connection for varicose veins. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's claims folder to a suitably qualified VA audiologist for a clarifying opinion as to the nature and etiology of any bilateral hearing loss disability and tinnitus that may be present. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and statements. The examiner should then state an opinion as to the likelihood (likely, unlikely, at least as likely as not) that the Veteran's current bilateral hearing loss disability and/or tinnitus is causally or etiologically related to his military service, including his credible report of noise exposure. In addition, the examiner should discuss medically known or theoretical causes of hearing loss and describe how hearing loss which results from noise exposure generally presents or develops in most cases, as distinguished from how hearing loss develops from other causes, in determining the likelihood that current hearing loss was caused by noise exposure in service as opposed to some other cause. The singular fact that a hearing loss was not shown in service can not legally serve as the rationale for finding that a current hearing loss is not related to service. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. Readjudicate the Veteran's bilateral hearing loss disability and tinnitus claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, a supplemental statement of the case should be issued, and the Veteran and his representative should be afforded the requisite opportunity to respond before the claims folder is returned to the Board for further appellate action. 3. Issue a SOC pertaining to the issue of whether new and material evidence was received to reopen the claim for service connection for varicose veins. In connection therewith, the Veteran and his representative should be provided with appropriate notice of his appellate rights. If, and only if, the Veteran files a timely substantive appeal, the case must be returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs