Citation Nr: 1317906 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-38 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for coronary artery disease. 2. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from October 1967 to November 1969, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issue of entitlement to service connection for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Vietnam during the Vietnam era and is presumed to have been exposed to Agent Orange. 2. The record shows a diagnosis of coronary artery disease; this is presumed due to exposure to herbicides in Vietnam. CONCLUSION OF LAW 1. Service connection for coronary artery disease is warranted. 38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159 and 3.326(a) (2012). 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 any 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Given the fully favorable decision discussed below, the Board finds that any issue with regard to the timing or content of the VCAA notice provided to the Veteran is moot or represents harmless error. II. Analysis of Claim Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is a showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). In this case, the disorder at issue is a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b) . For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also 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). Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he is presumed to have been exposed to herbicides if he served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence establishing the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). Disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an 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)(iii) 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; Hodgkin's disease; type 2 diabetes, non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma, and ischemic heart disease. 38 C.F.R. § 3.309(e). Under 38 C.F.R. § 3.309(e), ischemic heart disease is stated to include, 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. See 75 Fed. Reg. 14391 (March 25, 2010). Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984), does not preclude establishment of service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Veteran asserts that coronary artery disease is related to service. He asserts that service connection is warranted on a presumptive basis, based upon exposure to Agent Orange during service. Personnel records show that the Veteran served in the Republic of Vietnam from March 1968 to March 1969. Accordingly, his exposure to Agent Orange is presumed. The Board finds that a cardiovascular disorder was not chronic in service. Service treatment records reflect a normal that clinical evaluation of the heart was normal upon pre-induction examination in September 1966. Service treatment records reflect that complaints of chest pain were noted in October 1967 and June 1968. No diagnosis of a heart condition was noted. A normal clinical evaluation of the heart was noted upon separation in September 1969. Post-service medical records dated since 1998 reflect diagnoses and treatment of coronary artery disease. A VA examination for heart disorders in July 1998 reflects that the Veteran reported dizziness, shortness of breath and syncopal episodes since May 1998. The Veteran reported that he was receiving treatment with Hyzaar and digoxin, with no side effects. The VA examiner noted a history of coronary artery disease, METS level 7. The VA examiner diagnosed congestive heart failure, Type 2. A report of a VA general medical examination dated in July 1998 reflects a diagnosis of congestive heart failure. A private medical record dated in May 1998 reflects a diagnosis of cardiomyopathy - hypertensive plus idiopathic. A private treatment record dated in May 1998 shows that the Veteran underwent an exercise stress test due to chest pain. The report concluded that the Veteran had a mildly positive stress test for ischemia. Private medical records dated in August 1998 reflect diagnoses of cardiomyopathy and congestive heart failure. Private treatment records dated in August 1999 noted a history of diffuse cardiomyopathy in May 1998. A VA outpatient treatment record dated in May 2007 reflects an assessment of coronary artery disease. The Veteran had a VA examination in December 2009. The Veteran reported that he had shortness of breath when he was in service. He reported that he was seen by a primary care physician in 1998, who told him that he had congestive heart failure. The VA examiner noted a history of chronic congestive heart failure since 1998. The VA examiner diagnosed cardiomyopathy with congestive heart failure. The VA examiner noted that the problem associated with this diagnosis was coronary artery disease. A report of VA examination dated in March 2012 reflects that the VA examiner diagnosed cardiomyopathy with congestive heart failure and hypertensive heart disease. The VA examiner opined that these conditions are less likely than not incurred in or caused by symptoms of chest pain for which the Veteran was treated in service in October 1967 and June 1968. The Board finds that service connection is warranted for coronary artery disease. The Veteran's exposure to Agent Orange is presumed, based upon his service in Vietnam during the Vietnam era. VA regulations provide that service connection may be presumed for ischemic heart disease, to include coronary artery disease, for Veterans who were exposed to Agent Orange. The evidence shows an assessment of coronary artery disease by VA in May 2007 and the record shows evidence of ischemia on testing in May 1998. The December 2009 VA examination report also noted coronary artery disease associated with cardiomyopathy. While the March 2012 VA opinion did not find that the current heart disease was related to symptoms in service, the examiner did not address the evidence showing a diagnosis of coronary artery disease and the opinion is of limited probative value. In light of the evidence showing a diagnosis of coronary artery disease, the Board finds that the Veteran is shown to have a heart disorder which fits within the definition of ischemic heart disease as defined at 38 C.F.R. § 3.309(e), and presumptive service connection is warranted for coronary artery disease. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). ORDER Service connection for coronary artery disease is granted. REMAND Additional development is warranted with respect to the claim for service connection for hypertension. As the Board decision above grants service connection for coronary artery disease, the Board finds that an opinion concerning whether the Veteran's hypertension is caused or aggravated by his coronary artery disease is necessary. Accordingly, a remand is warranted to obtain a VA examination. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with VCAA notice regarding the claim for service connection for hypertension secondary to service-connected coronary artery disease. 2. Schedule the Veteran for a VA examination by an appropriate physician with respect to his claim for service connection for hypertension. The claims file must be provided for the examiner's review, and the examination report should indicate that the claims file was reviewed. The VA examiner should review all the pertinent evidence of record and provide opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's hypertension is proximately due to or aggravated by service-connected coronary artery disease. The VA physician must provide a detailed rationale for the opinions rendered. If the physician cannot provide the requested information without resort to speculation, it must be so stated with reasons why, and if an additional clinical evaluation is necessary to render the requested information, then that opportunity should be made available. 3. Thereafter, the claim for service connection for hypertension, to include as secondary to coronary artery disease, should be readjudicated. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs