Citation Nr: 1324761 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-07 803 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for heart disorder, claimed as due to herbicide exposure (previously claimed as cardiovascular and heart disease). 2. Entitlement to service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho which, in pertinent part, denied service connection for diabetes mellitus, type II and neuropathy, and cardiovascular disease, all claimed as due to Agent Orange exposure. In July 2010, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A copy of the transcript is of record. With regard to the issue of service connection for neuropathy, claimed as due to herbicide exposure, the Veteran filed a September 2009 notice of disagreement and the RO issued a January 2011 statement of the case. As of this date, the Veteran has not perfected an appeal, via a VA Form 9, for the issue of service connection for neuropathy. Thus, the Board finds that issue is currently not on appeal before the Board. See 38 C.F.R. § 20.200 (2012); Evans v. Shinseki, 25 Vet. App. 7 (2011). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, 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. All relevant evidence necessary to decide the Veteran's appeal regarding the issue of service connection for heart disorder, claimed as due to herbicide exposure, has been obtained. 2. The current heart disorder, diagnosed as valvular heart disease, is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). 3. The current heart disorder, diagnosed as valvular heart disease, is contemplated among the diseases listed as chronic diseases under 38 C.F.R. § 3.309(a). 4. The Veteran did not have chronic valvular heart disease in service or during the presumptive period. 5. Symptoms of chronic valvular heart disease have not been continuous since separation from service. 6. The current disorder, diagnosed as valvular heart disease, is not related to service and did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for heart disorder, claimed as due to herbicide exposure, have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a), (e) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. 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. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection can also be established through application of statutory presumptions, including for chronic diseases, such as endocarditis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. § § 3.307(a)(3), 3.309(a) (the term endocarditis covers all forms of valvular heart disease) (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). The Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed, Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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 of record. Indeed the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales 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 on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that service connection is warranted for a heart disorder due to exposure to Agent Orange during service in Thailand while loading and handling containers to be shipped to Vietnam. He also reported exposure to herbicide agents while in transit to the base in Thailand during a stopover in Vietnam. The evidentiary record shows a current diagnosis of valvular heart disease, as noted in a February 2003 private treatment record, August 2006 VA Agent Orange examination report, November 2008 private emergency room discharge report, and November 2008 VA examination report for the heart. The criteria of a current disability is met. The Board also notes that private stress echocardiography results showed negative stress echocardiogram for ischemia with multiple uniformed Premature Ventricular Contractions (PVCS) in November 2002 and no signs of ischemia present in March 2007. Importantly, the November 2008 VA examiner also noted the Veteran does not have diagnosed coronary artery disease at this time, providing highly probative evidence against this claim. Pursuant to the Veteran's contentions that his heart disorder is due to herbicide exposure, valvular heart disease is not among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309(e). Therefore, service connection for heart disorder on a presumptive basis as due to herbicide exposure is not available in this case. Next, since the current heart disorder, diagnosed as valvular heart disease, is contemplated among endocarditis, which is listed as a chronic disease under 38 C.F.R. § 3.309(a), the Board considers whether service connection is warranted on a presumptive basis as due to a chronic disease. See 38 C.F.R. §§ 3.309(a), 3.303(b). After review of the evidentiary record, the Board finds that the weight of the evidence demonstrates that the Veteran did not have chronic valvular heart disease in service or during the presumptive period nor have symptoms of chronic valvular heart disease been continuous since separation from service. The service treatment records are silent as to any complaints, treatment, or diagnosis of a heart disorder. The September 1970 separation examination report revealed clinical evaluation of the heart was normal. The Veteran marked "no" for having or ever having had a history of palpitation or pounding heart on the August 1966 Report of Medical History. The Veteran also has not asserted that symptoms of chronic valvular heart disease have been continuous since separation from service. Moreover, the Board finds the Veteran's current valvular heart disease did not manifest to a compensable degree within one year of separation from service. As noted above, the Veteran was first diagnosed with valvular heart disease at a February 2003 private treatment session, which is multiple years after separation from service. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against this claim for service connection on a presumptive basis as due to a chronic disease. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The Board now considers whether service connection is warranted for a heart disorder on a direct basis. See 38 C.F.R. §§ 3.303(a), (d). As noted above, the Veteran is currently diagnosed with valvular heart disease; however, service treatment records are silent as to any complaints, treatment, or diagnosis of a heart disorder. Moreover, neither the evidentiary record nor the Veteran asserts the current heart disorder had its onset in service. While the November 2008 VA examiner did not provide an opinion as to whether the Veteran's current valvular heart disease is related to service, the Board finds that such is not necessary in this case. The only evidence that the Veteran's heart disorder is directly related to service is his own conclusory generalized lay statements regarding in-service exposure to Agent Orange, which is unsupported by review of the service treatment and personnel records and even speculative medical evidence. The Board acknowledges that the Veteran is competent to report readily observable features or symptoms of an injury. See Layno, 6 Vet. App. at 469. Nonetheless, the Veteran's assertions of a link between his heart disorder and service are not credible, thus his own prior statements do not support this claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran). Accordingly, the Board finds that referral for a VA medical opinion on a direct basis is not warranted. Based on the evidence of record, the competent and probative evidence demonstrates no relationship between the Veteran's currently diagnosed valvular heart disease, and his period of active service, including no competent or probative evidence of a nexus to service. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection on a direct basis. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for heart disorder, and this claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by May 2006, April 2009, and October 2007 letters. In these letters, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. These letters also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letters told the Veteran that he could obtain private records himself and submit them to VA. The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the October 2007 and April 2009 letters included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim for a heart disorder on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, statements from the Veteran, and VA examination reports dated August 2006 and November 2008. The VA examiners reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided conclusions with supportive rationale. The Board finds the VA examinations reports are probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran was not afforded a VA medical opinion for the issue of service connection for a heart disorder on a direct basis, but none is required. In determining whether the duty to assist requires that a VA medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Federal Circuit has addressed the appropriate standard to be applied in determining whether an examination is warranted. In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, the only evidence that the Veteran's heart disorder is directly related to service is his own conclusory generalized lay statements regarding in-service exposure to Agent Orange, which is unsupported by review of the service treatment and personnel records and even speculative medical evidence. The Veteran's own prior statements do not support this claim. Accordingly, the Board finds that referral for a VA medical opinion on a direct basis is not warranted. Significantly, neither the Veteran nor his or representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of this claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Accordingly, the Board finds that referral for a VA medical opinion is not warranted. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for heart disorder, claimed as due to herbicide exposure, is denied. REMAND A remand is required in this case to ensure there is a complete record upon which to decide the issue of service connection for diabetes mellitus, type II, claimed as due to herbicide exposure. The Veteran contends that service connection is warranted for diabetes mellitus, type II, due to herbicide exposure in Thailand. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d); Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Pertinent provisions of the VA Adjudication Manual set forth procedures that VA must follow to verify herbicide exposure in locations other than the Republic of Vietnam, particularly in Thailand and in other locations. Specifically, the M21-1MR provides that several items of development should be performed, to include referring the case to the United States Joint Services Records Research Center (JSRRC) coordinator to make a formal findings that sufficient information required to verify herbicide exposure does not exist. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), (q). The Board has reviewed the claims file and notes that a March 2009 deferred rating decision included the following instruction: "please send a request to JSRRC or provide a [memorandum] signed by our JSR[R]C coordinator that shows a request was not submitted due to lack of specific information i.e., (date(s) of claimed exposure for research[)]." As of this date, the record does not contain a memorandum from the JSRRC coordinator regarding the Veteran's alleged herbicide exposure in Thailand. As a result, proper development is necessary to decide the claim based on the evidentiary record. Id. Accordingly, the issue of service connection for diabetes mellitus, type II, claimed as due to herbicide exposure, is REMANDED for the following actions: 1. Undertake all required development as indicated by the M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10(o), (q) to include referring the case to the JSRRC coordinator or appropriate agency in order to make a formal findings that sufficient information required to verify the Veteran's herbicide exposure during his period of service in Thailand does not exist based on the information of record. All documentation of such efforts and responses, both positive and negative, should be added to the claims file. The RO/AMC should also follow any recommendations provided by the JSRRC in obtaining any relevant records from alternate sources. 2. Thereafter, the issue of service connection for diabetes mellitus, type II, claimed as due to herbicide exposure 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 Veteran and representative have 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 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). ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs