Citation Nr: 1313508 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 07-25 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to service connection for a heart disorder. 2. Entitlement to service connection for dyspepsia. ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran had active military service from June 1947 to March 1969. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, the Republic of the Philippines. In October 2009, the Board denied the claims on appeal. The Veteran appealed the denials to the U.S. Court of Appeals for Veterans Claims. In June 2010, during the pendency of his appeal to the Court, the Veteran died. The Veteran's surviving spouse subsequently requested to be substituted as the appellant. See 38 U.S.C.A. § 5121A (West Supp. 2012). By a November 2010 Order, the Court granted the appellant's request for substitution. Accordingly, the appellant has been substituted as the claimant for the purposes of processing to completion the claims that were pending at the date of the Veteran's death. In a July 2011 Order, the Court granted a Joint Motion for Partial Remand, and remanded the claim to the Board for compliance with directives specified in the Joint Motion. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era. 2. The most probative evidence of record supports a finding that the Veteran had congestive heart failure as a result of longstanding ischemia without myocardial infarction. 3. The most probative medical evidence of record links the Veteran's gastric disorder, diagnosed as dyspepsia, to service. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, with congestive heart failure, as secondary to in-service herbicide exposure, have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a gastric disorder, diagnosed as dyspepsia, have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for a cardiovascular disability and a gastric disorder. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). 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). As to the specific contention that the Veteran was exposed to certain herbicides (such as Agent Orange) in service, the Board observes that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to a herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). As the record reflects the Veteran's service in Vietnam, his exposure to herbicides is presumed. 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 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes mellitus, 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), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. 38 C.F.R. § 3.309(e); 75 Fed. Reg. 14,391 (March 25, 2010); 75 Fed. Reg. 53, 202 (August 31, 2010). Ischemic heart disease 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. 53202 (Aug. 31, 2010). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Heart Disability The record reflects that the Veteran served in the Republic of Vietnam from February 1967 to February 1968. Private medical records dated in September 2003, April 2005 to June 2005, September 2007, and July 2009 to June 2010, show an ongoing diagnosis of congestive heart failure. A death certificate shows that the Veteran's June 2010 death was the result of an acute myocardial infarction due to ischemic heart disease with associated hypertension and marked cardiomegaly. In January 2013, the Board obtained a Veterans Health Administration (VHA) opinion in which a VA cardiologist opined that it is at least 50 percent possible that the Veteran's heart failure symptoms could be due to longstanding ischemia without myocardial infarction. In support of that opinion, the cardiologist determined that the Veteran had coronary artery disease based on pathology showing coronary occlusion at death and an ultrasound showing atherosclerosis in the aorta. The examiner further noted that the Veteran's type of congestive heart failure is typically related to, among other things, coronary disease. The Board finds that the January 2013 medical opinion is probative, as it was provided by an expert in cardiology, based on a review of the entire record with reference to pertinent clinical evidence, and is supported by sufficient rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (holding that among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Additionally, the opinion is supported by other evidence of record, including the death certificate documenting ischemic heart disease, and there is no contrary opinion of record. Accordingly, the Board will afford that opinion great probative value. To establish service connection for a disease presumed associated with exposure to herbicide agents, it need only be shown that the Veteran has such disease and 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. As a result, the Board finds that the preponderance of the evidence supports a grant of service connection for ischemic heart disease with congestive heart failure on a presumptive basis as a result of herbicide exposure. Gastric Disorder Service treatment records show that the Veteran was seen in service in July 1963 for gastrointestinal (GI) symptoms including vomiting blood and black tarry stools. He was hospitalized for GI bleeding thought to be a duodenal ulcer or possibly gastritis. A subsequent upper GI series showed a deformity of the duodenal cap. Thereafter, it was noted in September 1963 that the Veteran was taking antacids on an as-needed basis, and the plan was to continue with antacids. During a March 1964 annual service examination, it was noted that the Veteran was previously thought to have a duodenal ulcer, which was not proven. However, a later upper GI series showed a deformity of the duodenal bulb. In July 1965 and August 1965 the Veteran was seen again for gastrointestinal problems and an upper GI series showed duodenitis. Upon examination in November 1968 for purposes of retirement, the Veteran reported positive history of stomach or intestinal problems. The examiner noted that the Veteran had experienced GI bleeding in 1963, but that there had been no reoccurrence. Clinical evaluation at that time revealed no gastrointestinal abnormality. Post-service private treatment records dated from September 2003 through June 2005 show intermittent treatment for gastric problems diagnosed as drug-induced dyspepsia. Thereafter, September 2007 and March 2008 private medical records note a diagnosis of chronic dyspepsia. Private medical records dated from July 2009 to June 2010 are silent for treatment or diagnoses related to dyspepsia or other gastric problems. In January 2013, the Board obtained a VHA opinion regarding the Veteran's gastric disorder, to include whether it was caused or aggravated by his heart disability. The VA cardiologist opined that there is no evidence to support that the Veteran's dyspepsia was worsened due to his heart condition. However, the examiner pointed out that, "Indeed, the [Veteran] had prior history of peptic ulcer disease years prior mentioned in his service records." The VHA examiner also noted that the Veteran was treated with nonsteroidal anti-inflammatory medications (NSAIDs), which are a frequent culprit of drug-induced dyspepsia. Here, the January 2013 VHA opinion is the most probative medical evidence of record. Indeed, it is the only opinion of record addressing the etiology of the Veteran's gastric disorder, manifested by dyspepsia. The Board interprets that opinion to indicate that the Veteran's gastric problems manifested by dyspepsia were directly related to his history of GI problems documented in the service treatment records. In this regard, it appears that, in concluding that the Veteran's gastric problems were unrelated to his heart disability, he first determined that the Veteran had a longstanding chronic gastric condition as evidenced by service treatment records showing in-service treatment for peptic ulcer disease. While the VHA examiner also indicates in his opinion that NSAIDs frequently cause dyspepsia, he did not explicitly opine that the Veteran's dyspepsia was caused by NSAIDs, but rather offered NSAIDs as a potential cause. Even so, as stated, the examiner appears to conclude that the Veteran's gastric problems initially arose in service. As the January 2013 VHA opinion was based on a review of the Veteran's claims file and was undertaken directly to address the issue on appeal, and as the opinion is supported by some degree of rationale, namely the reference to evidence of treatment for gastrointestinal problems in service, the Board will afford that opinion probative value. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Furthermore, the Board finds that the examiner's conclusion is reasonably supported by service treatment records which show periodic treatment for GI problems and indicate that the Veteran was taking antacids. Significantly, there is no contrary opinion of record. In the Board's view, the evidence in this particular case is in relative equipoise on the question of whether the Veteran's chronic dyspepsia was incurred during service. When presented with such evidence, a basis for granting service connection exists. Therefore, the appeal is granted. ORDER Service connection for a heart disability is granted. Service connection for a gastric disorder, diagnosed as dyspepsia, is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs