Citation Nr: 1312110 Decision Date: 04/12/13 Archive Date: 04/19/13 DOCKET NO. 08-33 696A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served for more than twenty years on active duty from June 1969 to January 1972, and from March 1973 to July 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2006 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In November 2009, the Veteran testified during a hearing before the undersigned at the RO. The hearing transcript is of record. The record consists of the Veteran's paper claims files and an electronic file known as Virtual VA, both of which were reviewed by the Board. FINDINGS OF FACT 1. The Veteran had service in Vietnam in between December 21, 1969, and November 30, 1971, and is, therefore, presumed to have been exposed to herbicides. 2. The Veteran has a diagnosis of coronary artery disease. CONCLUSION OF LAW Coronary artery disease was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service connection is warranted if it is shown that a Veteran has a disability resulting from an injury incurred or a disease contracted in active service or for aggravation of a pre-existing injury or disease in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 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. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247, 252 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). VA regulations provide that certain diseases associated with exposure to herbicide agents 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) (2012). A veteran who, during active 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 C.F.R. § 3.307(a). The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 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. If a Veteran was exposed to an herbicide agent during active 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 disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin's disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson'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); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma); 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). 38 C.F.R. § 3.309(e). 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, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a 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). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. In this case, the record reflects that the Veteran experienced a myocardial infarction in 2002, and by 2003, follow-up diagnostic testing (coronary angiography) confirmed significant obstructive epicardial three vessel coronary artery disease (CAD). More recently, VA outpatient records in June 2007 show ongoing treatment of CAD. Most recently, January 2009 VA echocardiogram again shows CAD. Thus, prior to and throughout the course of this claim and appeal, the Veteran has carried a diagnosis of CAD. The Veteran's service personnel records were confirmed via the PIES system to show that the Veteran served in the Republic of Vietnam between December 21, 1969, and November 30, 1971. As the evidence reflects that the Veteran served in Vietnam during the prescribed time period, he is entitled to the presumption of exposure to herbicides. Moreover, affirmative evidence does not exist to rebut that presumption. Service connection is warranted on a presumptive basis for a specific list of diseases set forth under 38 C.F.R. § 3.309(e) as listed above. As the Veteran's diagnosed disability of CAD is among the diseases recognized under 38 C.F.R. § 3.309(e), as a disease associated with exposure to certain herbicide agents, and in light of the fact that there is no evidence of an intercurrent cause of CAD, the Board concludes the Veteran is entitled to a grant of service connection for his CAD on a presumptive basis. 38 C.F.R. § 3.309(e). As CAD may be granted on a presumptive basis, the Board need not address it on any other basis. ORDER Service connection for coronary artery disease (CAD) is granted. ____________________________________________ L.M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs