Citation Nr: 1328201 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 04-11 277 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a heart condition, to include stable angina. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from January 1965 to January 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran submitted a Notice of Disagreements (NOD) with this determination in February 2005, and perfected his appeal in June 2005. The issue of service connection for coronary artery disease was initially before the Board in June 2009, at which time it was remanded for further development. In an August 2011 rating decision, the RO again denied the Veteran's claim of service connection for coronary artery disease on the basis of exposure to herbicides. In April 2012, claim of service connection for coronary artery disease was again before the Board, at which time it was denied. The Veteran subsequently submitted a Notice of Appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his claim. The Court issued a January 2013 Order vacating the April 2012 Board decision, and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand (JMR). The Board recognizes that the RO characterized the Veteran's heart disability appeal as entitlement to service connection for coronary artery disease. However, a review of the record reflects that the Veteran has been diagnosed with other heart disabilities in his private and VA treatment records, to include sinus tachycardia, chronic stable angina, aortic sclerosis, atrial enlargement, and cardiac arrhythmia. The Board observes that VA has an obligation to liberally construe the pleadings of a claimant to discern all issues raised in the record. See Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1 (2009). Thus, in light of the Veteran's assertions, the Board will consider whether service connection is warranted for any current heart conditions. For this reason, the Board finds that the Veteran's heart claim is more appropriately framed as the broader issue indicated on the title page of this decision, rather than as a specific condition. FINDING OF FACT A heart condition, chronic stable angina, is presumed to be etiologically related to in-service exposure to an herbicide agent. CONCLUSION OF LAW A heart condition, to include chronic stable angina, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 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 agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In light of the Board's decision to grant service connection for a heart condition, a discussion as to whether VA's duties to notify and assist the appellant have been satisfied is not required. The Board finds that no further notice or assistance is necessary, and the appeal at this time is not prejudicial to the Veteran. II. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). However, the absence of a documented disability while in service is not fatal to a claim for service connection. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). When a Veteran does not meet the regulatory requirements for a disability at separation, he can still establish service connection by submitting evidence that a current disability is causally related to service. Hensley v. Brown, 5 Vet. App. 155, 159-60 (1993). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Heart condition The Veteran contends that his heart condition is a result of his time in active service. Specifically, the Veteran contends that his heart condition is a result of Agent Orange exposure while serving in the Vietnam area. Certain Veterans - namely, those who served in Vietnam between January 9, 1962, and May 7, 1975 - are presumed by law to have been exposed to herbicides during service. 38 U.S.C.A. § 1116. Generally, the presumption of herbicide exposure does not apply to Vietnam-era Veterans unless they served within the land borders of Vietnam during the prescribed period. Haas v. Peake, 525 F.3d 1168, 1172 (Fed. Cir. 2008) (holding that Veterans who served on ships off the coast of Vietnam but who never set foot within the land borders of Vietnam are not entitled to the presumption of herbicide exposure). Similarly, certain diseases are presumed by law to have been caused or aggravated by herbicide exposure. 38 U.S.C.A. § 1116; see also 38 C.F.R. §§ 3.307, 3.309. In August 2010, the Secretary expanded the list of diseases subject to that presumption, and the disease at issue in this case, to include 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). 75 Fed. Reg. 53, 202 (August 31, 2010) (amending 38 C.F.R. § 3.309(e)). The Personnel Information Exchange System (PIES) documented that the Veteran served in the Republic of Vietnam during the Vietnam era from July 4, 1965 to July 11, 1965; March 22, 1966 to March 26, 1966; April 12, 1966 to April 18, 1966; April 26, 1966 to April 29, 1966; May 12, 1966 to May 18, 1966; June 1, 1966 to June 4, 1966; July 2, 1966 to July 5, 1966; August 3, 1966 to August 5, 1966; August 9, 1966 to August 16, 1966; December 3, 1967 to December 8, 1967; and December 23, 1967 December 31, 1967. There is no affirmative evidence in the record to establish that the Veteran was not exposed to herbicides during service. In fact, in an October 2001 rating decision, the RO granted service connection for diabetes mellitus, and conceded in-service exposure to herbicides. Therefore, he is entitled to a presumption of exposure to herbicide agents. The Veteran submitted private treatment records for his ongoing heart condition. The March 2002 and October 2004 Emergency Room records show that the Veteran was diagnosed with chronic stable angina, and was prescribed aspirin and nitroglycerin. Additional records indicate diagnoses of congestive heart failure, sinus tachycardia, right atrial enlargement, aortic sclerosis, atrial enlargement, and cardiac arrhythmia. On balance, the record evidence supports the conclusion that the Veteran has a current disability of chronic stable angina. Since the Veteran is presumed to have been exposed to herbicides and has been diagnosed with a disease presumptively linked to herbicide exposure, namely chronic stable angina, the Board finds it reasonable to conclude that service connection for a heart condition, to include chronic stable angina, is warranted. The appeal is granted. ORDER Service connection for a heart condition, to include chronic stable angina, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs