Citation Nr: 1320140	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  05-23 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in 
San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for hearing loss to include as secondary to diabetes mellitus, insulin dependent, with peripheral neuropathy.

2.  Entitlement to service connection for ischemic heart disease to include as secondary to diabetes mellitus, insulin dependent, with peripheral neuropathy.

3.  Entitlement to service connection for hypertensive heart disease, to include as secondary to hypertension and/or diabetes mellitus, insulin dependent, with peripheral neuropathy.


REPRESENTATION

Appellant Represented by:    The American Legion



ATTORNEY FOR THE BOARD

Christopher McEntee, Counsel 


INTRODUCTION

The Veteran served on active duty from October 1967 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  In June 2008 and March 2012, the Board remanded this matter for additional development and medical inquiry.  Satisfactory efforts to develop the case in accordance with the remand instructions have been completed with regard to the service connection claim for ischemic heart disease.  The claim is now before the Board for further appellate consideration.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).  

The Board has reviewed the entire record to include the Veteran's paper claims file, and his Virtual VA claims file.  Relevant evidence pertaining to the claim to service connection for ischemic heart disease has been added to the record since the most-recent supplemental statement of the case (SSOC) dated in December 2012.  The evidence has been considered in the decision below pursuant to the Veteran's January 2013 waiver of initial review of the evidence by the Agency of Original Jurisdiction (AOJ).  See 38 C.F.R. §§ 19.31, 20.1304(c) (2012).   

The Board has rephrased the issues concerning heart disease to more appropriately reflect the Veteran's contentions and the matters that were considered by the RO.

It is noted that the Veteran has raised the issue of entitlement to service connection for hypertension.  In this regard, the RO noted in the December 2012 supplemental statement of the case(SSOC) that the April 2012 examiner's rationale concerning heart disease was that hypertensive heart disease was due to hypertension which started many years after service.  The SSOC also noted that hypertension predated diabetes and was not aggravated by diabetic neuropathy.  In his April 2013 response to the SSOC the Veteran asserted that service connection was warranted for hypertensive heart disease and also made reference to hypertension.  As the matter pertaining to hypertension has not been adjudicated, it is referred to the RO for the appropriate consideration.
 
The issues regarding service connection for hypertensive heart disease and service connection for hearing loss 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.  All reasonable notification and development has been completed as to the adjudication of the Veteran's claim to service connection for ischemic heart disease.  

2.  The record reflects that the Veteran has ischemic heart disease, including coronary artery disease (CAD), that is etiologically related to his active military service.


CONCLUSION OF LAW

Service connection is warranted for ischemic heart disease, including coronary artery disease (CAD).  38 U.S.C.A. §§ 1110, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board notes at the outset that, in accord with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

In this case, and for the reasons stated below, the Board finds that service connection is warranted for ischemic heart disease, including CAD.  Therefore, no further discussion of the VCAA is warranted with respect to this appellate claim as any deficiency has been rendered moot.

The Board notes that it has thoroughly reviewed the record in conjunction with this case.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim.  See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).  

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).  When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant.  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.  Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  

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, 1131; 38 C.F.R. § 3.303.  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 the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service.  Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West , 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)).  Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible.  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In this matter, the Veteran contends that he developed ischemic heart disease as a result of exposure to herbicides while serving in Korea from March 1968 to June 1969.  The law provides a presumption of service connection for certain diseases that are associated with exposure to herbicide agents and that become manifest within a specified time period in a veteran who served in the Republic of Vietnam or in or near the Korean demilitarized zone (DMZ) during specified periods of time, even if there is no record of evidence of such disease during the period of service.  See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  

Specifically, the law provides that, a veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, 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.  See 38 C.F.R. § 3.307(a)(6)(iv).  The DoD has identified specific units that served in areas along the DMZ in Korea where herbicides were used between April 1968 and July 1969.  See M21-1MR, IV.ii.2.C.10.p.  

If a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for the following disorders: AL amyloidosis; chloracne or other acneform disease consistent with chloracne; Type II diabetes; Hodgkin's disease; 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); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin's lymphoma; Parkinson's disease; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); and, soft-tissue sarcoma (other than ostrosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma).  38 C.F.R. § 3.309(e).    

In this case, a service connection finding is warranted for ischemic heart disease under 38 C.F.R. § 3.309(e).  

First, the evidence indicates that the Veteran served at or near the DMZ in the late 1960s.  The DoD has identified the 2nd and 7th Infantry Divisions as units that may have been exposed to herbicides while serving along the DMZ.  See M21-1MR, IV.ii.2.C.10.p.  The Veteran was not assigned to either of these units.  But he contends that the particular unit to which he was assigned - A Company 2nd S&T Battalion 2nd Infantry Division - did, between March 1968 and June 1969, enter the same locations as those occupied by the 2nd and 7th Infantry Divisions.  The record supports his assertion.  In an August 2008 memorandum of record from U.S. Armed Services Center for Research of Unit Records (USASCRUR) (now the Joint Services Records Research Center (JSRRC)), it is stated that the Veteran's unit was "located approximately 6 miles from the Demilitarized Zone" and its "mission was to provide combat service support to the 2nd Infantry Division ... and units of the 7th Infantry Division."  Based on this evidence, the RO, in granting presumptive service connection for diabetes mellitus type 2 (diabetes), recognized the Veteran's qualifying service "at or near" the DMZ during the late 1960s.  In this decision, the Board will similarly recognize the Veteran's service "at or near" the DMZ in the late 1960s.  He is therefore presumed to have been exposed to herbicides during service in Korea.  

Second, the evidence is in equipoise on the issue of whether the Veteran currently has a heart disease listed under 38 C.F.R. § 3.309(e).  

On the one hand, certain evidence of record indicates that the Veteran has one of the listed heart disorders under 38 C.F.R. § 3.309(e).  In a February 2001 VA treatment record, the Veteran claimed that he experienced myocardial infarction in 1976.  Private treatment records dated from the early 2000s note a history of CAD, chronic ischemic heart disease, heart failure, old myocardial infarction, angina pectoris, and acute coronary syndrome.  September 2003 VA compensation examination reports note diagnoses of CAD "with inferior wall ischemia, angina pectoris."  A September 2003 Social Security Administration decision granting disability benefits stated that the "medical evidence establishes that the claimant has ... coronary artery disease ... [and] angina pectoris[.]"  And VA treatment records dated from March 1998 to February 2012 note such disorders as atherosclerotic aorta, CAD, "cor atheroscl", and history of myocardial infarction.  Significantly, in as recent as February 2012, the Veteran's treating VA physician stated that the Veteran had chronic ischemic heart disease.  

On the other hand, certain evidence of record indicates that the Veteran does not have one of the heart disorders listed under 38 C.F.R. § 3.309(e).  An April 2012 VA compensation examination, conducted pursuant to the Board's March 2012 remand for additional medical inquiry, found no evidence of a qualifying heart disorder listed under 38 C.F.R. § 3.309(e).  In the report of record, the examiner, a physician, indicated a review of the claims file and an examination of the Veteran.  The examiner discussed the voluminous medical evidence of record addressing the Veteran's heart, and specifically addressing past diagnoses of heart disease.  And the examiner stated that, though the Veteran had hypertensive heart disease, he did not have ischemic heart disease, coronary artery disease, atherosclerotic cardiovascular disease, or a history of myocardial infarction.  The examiner indicated that though the Veteran had complained of a history of these heart diseases, he underwent "work up" and catheterization during the 2000s which indicated no evidence of his claimed myocardial infarction in 1976, no evidence of CAD, and no evidence of ischemia.  

The Board regards the detailed findings in the April 2012 report to be of probative value.  The examiner thoroughly discussed the Veteran's medical history, and persuasively reasoned that the evidence simply did not corroborate a finding of heart disease listed under 38 C.F.R. § 3.309(e).  See Bloom v. West, 12 Vet. App. 185, 187 (1999) (a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion).  

However, the April 2012 report and opinion do not comprise a preponderance of the evidence in this matter that the Veteran has not had a qualifying heart disease during the appeal period.  The repeated diagnoses noted in medical evidence of record during the appeal period are simply too detailed and developed to be offset with the one opinion in April 2012.  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim).  

In Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims found that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology."  Further, in Gilbert, supra, the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  In Gilbert the Court specifically stated that entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence.  Under the benefit of the doubt doctrine established by Congress, when the evidence is in relative equipoise, the law dictates that the appellant prevails.  See also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  The evidence, including VA examination results from September 2003, shows that ischemic heart disease was diagnosed during the pendency of the claim.  Accordingly, the Board concludes that ischemic heart disease, including CAD, was documented during the appeal period.  38 C.F.R. §§ 3.307, 3.309.

Based on the Veteran's diagnosed ischemic heart disease, and his presumed exposure to herbicides while serving in Korea, a service connection finding for ischemic heart disease is warranted.    


ORDER

Service connection for ischemic heart disease, including coronary artery disease, is granted.  


REMAND

The Veteran claims service connection for bilateral hearing loss.  His claim has been developed as one based on direct service connection, and one based on secondary service connection - i.e., that his hearing loss is secondary to service-connected diabetes.  

The Veteran has undergone two VA compensation examinations into his claim, in September 2003 and April 2012.  The September 2003 VA examiner diagnosed the Veteran with bilateral hearing loss but did not provide an opinion addressing the issue of etiology.  The April 2012 examiner diagnosed the Veteran with bilateral hearing loss and provided an opinion addressing the issue of direct service connection.  The examiner did not address the issue of secondary service connection however.  38 C.F.R. §§ 3.303, 3.310.  

Under 38 C.F.R. § 3.310(a), service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a) (2012).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

As the Veteran was service connected for diabetes in December 2012, an additional opinion is necessary here.    

In addition, concerning hypertensive heart disease, it is noted that the Veteran has not been provided with notice as to how to substantiate his claim as secondary to a service-connected disability.  Accordingly, notice pursuant to 38 C.F.R. § 3.159 should be provided on remand.  It is also noted that the issue is inextricably intertwined with the issue of service connection for hypertension which was referred back to the RO in the Introduction.

Accordingly, the case is REMANDED for the following action:

1.  Obtain an addendum opinion from the April 2012 VA examiner (or an appropriate substitute if the original examiner is unavailable) answering the following two questions:

(a)  is the Veteran's bilateral hearing loss at least as likely as not (a probability of 50 percent or greater) due to or caused by his service-connected diabetes? 

(b)  is the Veteran's bilateral hearing loss at least as likely as not aggravated by his service-connected diabetes?  By aggravation, the Board means an increase in the severity of the underlying disability that is beyond normal progression.  

Please provide a complete explanation for the opinion.

2.  Provide notice to the Veteran as to how he can substantiate his claim for service connection for hypertensive heart disease as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.159.  

3.  The Veteran's claims for service connection for bilateral hearing loss and hypertensive heart disease should thereafter be readjudicated.  If the benefits sought on appeal remain denied, the Veteran and his representative must be provided a SSOC addressing the issue.  [IT IS NOTED THAT THE ISSUE OF SERVICE CONNECTION FOR HYPERTENSIVE HEART DISEASE IS INEXTRICABLY INTERTWINED WITH THE ISSUE OF SERVICE CONNECTION FOR HYPERTENSION THAT WAS REFERRED IN THE INTRODUCTION.]  An appropriate period of time should be allowed for response before the case is returned to the Board.   

The Veteran has the right to submit additional evidence and argument on the matter 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).



______________________________________________
S.S. TOTH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs