Citation Nr: 1328666	
Decision Date: 09/09/13    Archive Date: 09/17/13

DOCKET NO.  12-04 808	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to service connection for a heart disorder, to include as secondary to Agent Orange exposure.  


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

H. Bunker, Associate Counsel



INTRODUCTION

The Veteran served on active duty from February 1970 to February 1974 and from May 1976 to March 1978.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

A review of the Virtual VA paperless claims processing system reveals additional VA treatment records.  In the January 2013 Supplemental Statement of the Case, the RO specifically stated that the Veteran's VA treatment records from November 2007 to December 2011 were reviewed prior to the adjudication of the claims. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claims. 


FINDING OF FACT

The preponderance of the evidence is against a finding that a heart disorder is related to service, to include exposure to Agent Orange.


CONCLUSION OF LAW

The criteria for the award of service connection for a heart disorder, to include as secondary to Agent Orange exposure, have not been met.  38 U.S.C.A. §§ 1110, 1112, 1113; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 

It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim.  Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duties 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, 3.326(a).

The notice requirements were met in this case by a letter sent to the Veteran in August 2010.  This letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); 38 C.F.R. § 3.159(b).  This letter also advised the Veteran of how disability ratings and effective dates are determined.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage.  See Mayfield v. Nicholson, 19 Vet. App. 103 (2005).

The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005).  That was done in this case.
The Veteran's service treatment records and VA treatment records are in the file.  The VA also obtained private treatment records from Dr. C. R. and the Southwest Texas Methodist Hospital.  Dr. A.J. notified the RO no records were available for the Veteran.  See December 2010 statement.  The Veteran has not indicated that there are any additional outstanding records to be obtained.  The duty to assist with obtaining medical records has been satisfied.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case.

The Veteran was afforded a VA medical examination in November 2012 for his heart disorder claim.  This opinion was rendered by a medical professional following a thorough examination and interview of the Veteran.  The examiner obtained an accurate history.  The examiner provided a detailed conclusion for the opinions that were reached.  Therefore, the Board finds that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

In light of the foregoing, all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist.  38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Service Connection

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no 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).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d).

In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may also be granted for a chronic disease, including cardiovascular-renal disease, when it is manifested to a compensable degree within one year of separation from service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

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 3-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.  Layno v. Brown, 6 Vet. App. 465 (1994).  Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death).

In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge.  Routen v. Brown, 10 Vet. App. 183 (1997).  In certain instances, however, lay evidence has been found to be competent with regard to a disease with 'unique and readily identifiable features' that is 'capable of lay observation.'  See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet).  Laypersons have also been found to not be competent to provide evidence in more complex medical situations.  See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever).

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  Competent medical evidence may also include statements conveying sound medical principles found in medical treatises.  It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses.  38 C.F.R. § 3.159(a)(1).

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').

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

Presumptive Service Connection

A presumption exists for certain diseases associated with exposure to herbicide agents, which may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met.  38 C.F.R. § 3.309(e).  The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.  The list of diseases for which service connection may be presumed to be due to an association with herbicide agents includes ischemic heart disease.  38 C.F.R. § 3.309(e) (2012).  

Here, the Veteran has confirmed service in Vietnam during the Vietnam War era from April 1972 to March 1973 and is therefore presumed to have been exposed to herbicide agents.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).

The Veteran asserts that his heart disorder was caused by exposure to Agent Orange in-service.  As has been noted, the Veteran is presumed to have been exposed to Agent Orange.  The Board observes that ischemic heart disease is a presumptive condition.  Ischemic heart disease includes, 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; and stable, unstable and Prinzmetal's angina.  Note 3 to 38 C.F.R. § 3.309(e) reads as follows: 'For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.'  The Veteran has not been diagnosed with ischemic heart disease; rather he has been diagnosed with atrial fibrillation.  See 38 C.F.R. § 3.309(e).  Therefore, the presumption is not warranted for the claimed heart disorder.

While service connection may not be granted on a presumptive basis for the heart disorder, the Veteran is not precluded from establishing service connection with evidence that this disability was incurred during service or is otherwise related to service.  See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Direct Service Connection

The Veteran was afforded multiple medical examinations in service.  In February 1970 the Veteran denied palpitations or pounding heart.  He was found to be qualified for entrance to service.  In a January 1974 Report of Medical Examination again the Veteran was found to be free of heart defects.  In a March 1976 examination there was no evidence of a heart disorder and the Veteran specifically checked the box indicating that he did not have palpitations or pounding heart, or heart trouble on his March 1976 Report of Medical History.  Again in May 1977 and March 1978 the Veteran had no heart defects noted.  

The Board has reviewed the Veteran's post-service treatment records, however there is no opinion linking his heart disorder to service.  The earliest record of a heart disorder diagnosis comes from a July 1998 private treatment record, approximately 20 years after separation from service.  The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue.  See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).  

Post-service in a July 1998 private treatment record the Veteran reported to the hospital with lone atrial fibrillation.  He was discharged in stable and improved condition.  In a September 1998 private treatment record the Veteran was seen for a follow up of the July 1998 atrial fibrillation episode.  He had no indication of coronary artery disease.  His heart sounds were normal and regular without audible murmur, gallop or rubs.

In a January 2005 private treatment record the Veteran was noted to have a history of atrial fibrillation.

In a December 2009 private treatment record the Veteran reported an irregular heartbeat.  He was diagnosed with an anxiety and stress reaction.

In an August 2010 VA treatment record the Veteran reported that he knows if he is having an atrial fibrillation episode because he feels like his heart is racing.  These episodes usually last 5-10 minutes and occur 1-2 times a year.  In an August 2011 VA treatment record he had a regular heart rate and rhythm.  

The Veteran was afforded a VA examination in November 2012.  A physician's review of the claims file is not the determinative factor in assigning probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008).  However, a physician should have information regarding relevant case facts, which the examiner did in this case.  Id.  While the claims file was unavailable for review, the examiner accurately noted the Veteran had been treated for atrial fibrillation.  The examiner also performed a thorough physical examination to determine if the Veteran had ischemic heart disease.  A remand for review of the record is not necessary as the Veteran was not treated in service for a heart disorder and the only post-service diagnosis he received is for atrial fibrillation, which the examiner acknowledged.  The Veteran denied coronary bypass surgery, a pacemaker, a heart transplant, or congestive heart failure.  The Veteran reported occasional atrial fibrillation that started in 2006.  He reported using Valsalva maneuvers to resolve his symptoms.  The examiner opined that the Veteran did not have any heart disease that fit the diagnostic criteria for ischemic heart disease.

The Board finds that the preponderance of the evidence is against the Veteran's claim for service connection.  A heart disorder was not diagnosed during service or for many years thereafter, and there is no competent and credible evidence of record showing that the condition began in service.  

There is also no evidence that the Veteran had a heart disorder that manifested within a year of service.  The presumption of service connection does not therefore apply.  38 U.S.C.A. §§ 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).

The Veteran and his wife have provided statements attesting to his symptoms during an atrial fibrillation episode and that they believe his heart disorder was caused by exposure to Agent Orange.  See e.g., August 2010 statement.  The Veteran is competent to report observable symptoms.  Layno v. Brown, 6 Vet. App. 465 (1994).  

However, the most probative evidence of record shows that the Veteran's heart disorder is not related to service.  The Board acknowledges that the Veteran credibly believes he has a heart disorder as a result of his service.  Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing the etiology of heart disorder, this falls outside the realm of common knowledge of a lay person.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer).  In this case, given the Veteran's lack of medical expertise, his assertions that he currently has a heart disorder that is related to service are beyond his competence.  These statements are greatly outweighed by the November 2012 VA examiner's opinion that the Veteran's heart disorder does not meet the criteria for ischemic heart disease.  There is also no competent, probative evidence that any other heart disorder is related to service.  

Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a heart disorder and the benefit of the doubt rule does not apply.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet.  App. 49, 56 (1990).


ORDER

Entitlement to service connection for a heart disorder is denied.



____________________________________________
D. MARTZ AMES
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs