Citation Nr: 1319379 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 12-02 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a heart disorder, to include ischemic heart disease and valvular heart disease. REPRESENTATION Appellant represented by: John S. Berry, Private Attorney ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from December 1968 to December 1970. He served in Vietnam from June 1969 to June 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Board notes a claim for service connection for heart murmurs was initially denied in a December 1994 rating decision. The Veteran did not appeal and the decision became final. In adjudicating the Veteran's current claim, it is noted that the Veteran is now diagnosed with valvular heart disease. The Board construes the current appeal as a new claim, rather than an application to reopen the previous claims of service connection. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008); see also Ephraim v. Brown, 82 F.3d 399, 401 (Fed. Cir. 1996). In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Thus, while the Veteran specified that he was seeking service connection for ischemic heart disease, the claim has been broadened to include valvular heart disease and is recharacterized accordingly. FINDINGS OF FACT 1. The Veteran does not have ischemic heart disease. 2. Valvular heart disease was not present in service or manifested for many years thereafter and is not otherwise related to service. CONCLUSION OF LAW Heart disease, including ischemic heart disease and valvular heart disease, was not incurred in or aggravated by active military service, nor may such a disability be presumed to have been so incurred. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter sent in July 2010 prior to the initial rating decision. This letter included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA has also fulfilled its duty to assist in obtaining the identified and available evidence needed to substantiate the claims adjudicated in this decision. The Board notes that the Veteran has not been afforded a VA examination to determine the nature and etiology of a heart disorder. However, a VA examination or opinion is deemed necessary only if the evidence of record (a) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (b) establishes that the Veteran suffered an event, injury, or disease in service; (c) indicates that the claimed disability or symptoms may be associated with the Veteran's service or other service- connected disability, and (d) does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159; McClendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the requirement to examine the Veteran is not triggered as the evidence of record does not meet these initial evidentiary thresholds. There were no cardiac disorders or symptoms noted in service. There is no evidence that the Veteran has ischemic heart disease. There is also no evidence indicating a possible relationship between the Veteran's current valvular heart disease and an incident of or finding recorded during active service; therefore, the Board finds that an examination to determine the etiology of the Veteran's current heart disability is not required. 38 C.F.R. § 3.159(c)(4); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Significantly, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional outstanding evidence that is necessary for a fair adjudication of the claims that has not been obtained. Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Laws and Regulations Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Savage v. Gober, 10 Vet. App. 488 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. at 495-96. The Board does point out, however, that in Walker v. Shinseki, 708 F.3d 1331 (2013), the Federal Circuit held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Service connection may be awarded for a chronic condition when: (1) a chronic disease or disability manifests itself and is identified as such in service (or within the presumptive period under 38 C.F.R. § 3.307) and the Veteran currently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and the medical evidence relates that symptomatology to the Veteran's present condition. See Savage v. Gober, 10 Vet. App. 488. 495-98 (1997). Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all Veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a Veteran was exposed to an herbicide agent (to include Agent Orange) 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) are met, even if 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, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, chronic lymphocytic leukemia (CLL), Type II diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea), and soft-tissue carcinomas (other than osteosarcoma, Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). In addition, effective August 31, 2010, VA amended 38 C.F.R. § 3.309(e) to add hairy cell leukemia and other chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease to the list of diseases associated with exposure to an herbicide agent (to include Agent Orange). 75 Fed. Reg. 53202 -53216 (August 31, 2010). Thus, a presumption of service connection arises for a Vietnam veteran (presumed exposed to Agent Orange) or, alternatively, a veteran without Vietnam service with competent evidence of herbicide exposure, who develops one of the aforementioned conditions. VA has determined that there is no positive association between exposure to herbicides and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341 -346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). The United States Court of Appeals for the Federal Circuit has held, however, that a claimant is not precluded from establishing service connection with proof of actual causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Additionally, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Analysis After careful consideration of all the evidence of record, the Board finds that service connection for a heart disorder, to include ischemic heart disease and valvular heart disease is not warranted on any basis. The Board notes that the Veteran has verified service in the Republic of Vietnam. As such, he is presumed to have been exposed to herbicides, including Agent Orange. Service treatment records are silent for diagnosis or complaints of heart problems. An October 1968 treatment record reveals that the Veteran was treated for chest pain but the pain was believed to be muscle spasms. The Veteran was again treated for chest pain in November 1968. Upon examination the Veteran was found to have a clear chest, regular heart rhythms, and no chest wall tenderness. A February 1970 treatment record shows that the Veteran was again treated for chest pain. The examiner noted that there was no radiation of pain and no chest wall tenderness. The examiner concluded that there was no heart disease present. The Veteran's chest x-ray at entrance and separation was normal, and his examinations were also normal. The Veteran marked "no" on his Report of Medical History at entrance and separation as to whether he had any pain or pressure in his chest or palpitation or pounding heart. VA treatment records dated December 1995 to July 2011 contained in the claims file and Virtual VA are negative for treatment or diagnosis of heart disease. In March 2011 a private physician diagnosed the Veteran with valvular heart disease. An April 2011 chest x-ray revealed that the Veteran's heart size and pulmonary vasculature were within normal limits. TheVeteran's lung fields were clear and without evidence of pneumonia, atelectasis or effusions. The physician found the x-ray to be an unremarkable radiographic evaluation of the chest with no interval change. An April 2011 echocardiogram revealed mild concentric left ventrical hypertrophy, ejection fraction was 55-60 percent, the left atrium was midly enlarged, mild to moderate mitral regurgitation, mild thickening of the mitral valve leaflets, mild calcification of the mitral valve, mild mitral valve scelrosis, and mild tricuspid regurgitation. The Board finds that the evidence of record does not establish that the Veteran has ischemic heart disease. Therefore, service connection for ischemic heart disease is not warranted. The evidence of record does establish that the Veteran has a diagnosis of valvular heart disease. However, the Board finds that the Veteran's valvular heart disease is not related to service. As noted, service treatment records are negative for any treatment or diagnosis of a heart disorder. There is no evidence of any manifestation of valvular heart disease within a year of separation. There is also no medical opinion of record that purports to relate valvular heart disease to service. Further, valvular heart disease is not a condition subject to service connection on the basis of Agent Orange exposure. See 38 C.F.R. §§ 3.309(e). As for any direct assertions by the Veteran and/or his representative that the Veteran has ischemic heart disease or that there exists a medical nexus between valvular heart disease and the Veteran's military service, such evidence provides no basis for allowance of the claim. The matter on which this claim turns is within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran and his representative are not shown to be other than laypersons without the appropriate medical training and expertise, neither is competent to render a probative opinion on such a medical matter, such as whether his heart disorder was caused by service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for a heart disorder, to include ischemic heart disease and valvular heart disease, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a heart disorder, to include ischemic heart disease and valvular heart disease, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs