Citation Nr: 1333286 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 13-01 575 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for ischemic heart disease. 2. Entitlement to service connection for hypertension, claimed as due to herbicide exposure. REPRESENTATION Veteran represented by: Robert C. Brown, Jr., Attorney at Law ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to April 1972, which includes service in the Republic of Vietnam from November 1969 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The August 2012 rating decision granted service connection for ischemic heart disease, and assigned an initial 100 percent rating from January 30, 2012 to April 30, 2012, during and for three months following a myocardial infarction, and an initial 30 percent rating effective May 1, 2012. The rating decision also denied service connection for hypertension. The Board observes that the Veteran via his attorney submitted additional evidence in April 2013 with a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304(c) (2012). Therefore, the Board may properly consider such newly received evidence. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. A review of the Virtual VA claims file does not reveal any additional documents pertinent to the present appeal. The issue of entitlement to an initial rating in excess of 30 percent for ischemic heart disease is addressed in the REMAND portion of the decision below and is REMANDED to the VA RO. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam era, therefore, exposure to an herbicide agent is presumed. 2. The competent medical opinions on the question of whether the Veteran's current hypertension is etiologically related to herbicide exposure are in relative equipoise. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for hypertension are met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision to grant service connection for hypertension herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran served as a flight surgeon for helicopter crews in Vietnam, and asserts entitlement to service connection for his hypertension as a result of herbicide exposure in Vietnam. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection based on herbicide exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period of time. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). For purposes of establishing service connection for a disability resulting from exposure to an herbicide agent, a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to an herbicide agent, absent affirmative evidence to the contrary demonstrating that a Veteran was not exposed to any such agent during service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6). In the instant case, the Veteran's service record confirms that he served in Vietnam from November 1969 to June 1970. Therefore, he is presumed to have been exposed to herbicides coincident with such service. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In some cases, service connection may also be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307) and (ii) subsequent manifestations of the same chronic disease, or (b) if the fact of chronicity in service in not adequately supported, by evidence of continuity of symptomatology. However, the United States Court of Appeals for the Federal Circuit has held that the provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Finally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As an initial matter, the Board finds that the Veteran is not entitled to presumptive service connection for hypertension. In this regard, while he served in Vietnam and is presumed to have been exposed to herbicides coincident with such service, hypertension is not a disease that is recognized to be presumptively related to herbicide exposure. 38 C.F.R. § 3.309(e). Likewise, presumptive service connection based on a chronic disease is also not warranted as such did not manifest within a year of the Veteran's service discharge in April 1972. Moreover, the Veteran has not alleged a continuity of hypertension symptomatology since service. Rather, he claims that he developed hypertension in his mid-50's/early 60's. Specifically, Dr. M.W. noted in June 2012 that the Veteran developed hypertension in his mid-50's and cited a June 17, 1996 medical report with blood pressure readings of 140/88 and 140/90 with hypertension medications listed as support, and Dr. T.M. noted in his January 2012 independent medical examination that the Veteran's hypertension began at 60. Therefore, presumptive service connection, either on the basis of herbicide exposure or for a chronic disease, is not warranted. However, when a Veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on any other basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir.1994). Here, the Board considered entitlement to service connection for hypertension on a direct basis, and since the relevant evidence on the determining factor of nexus is in relative equipoise, the Board finds that service connection for hypertension on a direct basis is warranted. In this case, there is evidence of a current diagnosis of hypertension, and there is evidence of in-service exposure to herbicides coincident with the Veteran's service in Vietnam, thus satisfying the first and second elements of direct service connection. Therefore, this claim for direct service connection turns on a finding of a nexus between the Veteran's current hypertension and his exposure to herbicides while serving in Vietnam. As noted above, the evidence presented is in relative equipoise on the matter of a nexus between the Veteran's current hypertension and his exposure to herbicides while in Vietnam. Evidence that supports a finding of a nexus between herbicide exposure and hypertension includes a January 2012 independent medical examination from Dr. T.M., and a June 2012 expert medical opinion by Dr. M.W. Dr. T.M. stated that the Veteran's "exposures to herbicides caused and contributed to [the Veteran's] hypertension," and based this opinion on examination of the Veteran, review of medical and/or service records, his education training and experience, and upon reasonable medical probability and reasonable medical certainty. Dr. M.W. also provided an opinion based on examination of the Veteran, review of medical and/or service records, his education training and experience, and upon reasonable medical probability and reasonable medical certainty. Dr. M.W. noted that the Veteran developed hypertension in his mid-50's, then stated: Herbicide exposure in Vietnam is not presumptive evidence of service connection to hypertension, therefore I am enclosing an article from Science Daily (July 28, 2007) "Data Suggest Link Between Agent Orange Exposure and Hypertension." It is my medical opinion that it is more likely than not that this Veteran's hypertension and hypertensive heart diseases are service-connected due to his herbicide exposures in Vietnam and, that his symptoms of congestive heart failure in the first month after his 1/5/12 myocardial infarction were due to heart damage from his service connected ischemic heart disease and service connected hypertensive heart disease putting additional strain on his damage heart muscle. It is my medical opinion that his service connected 7007 hypertensive heart disease percentage is now at a zero percent at this time. Evidence against a finding of a nexus includes the VA examiner's opinion from June 2012. The VA examiner indicated that the "claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The rationale for the opinion noted: STR's [service treatment records] are silent for mention of hypertension. The Veteran's treating physician indicates that the hypertension has been present since age 60. The Veteran indicates that his hypertension began in his mid 50's, supported by a medical report in 1996. Although there have been recent studies that have indicated that Veterans who have handled Agent Orange have a higher rate of hypertension than expected, other studies have not found evidence of an association between herbicide or dioxin exposure and an increased incidence of high blood pressure. Still other studies that have indicated a possible association between [hypertension] and Agent Orange and its contaminants were not adjusted for known risk factors. It is notable that the recent studies showing an increased incidence of hypertension were performed on Veterans who had handled Agent Orange. The Veteran worked as a flight surgeon in Vietnam and did not handle Agent Orange. Thus, given the limitations and inconsistent results of the studies, the cumulative body of evidence has been concluded to be insufficient to conclude with certainty that an association between high blood pressure and herbicide exposure exists. Taking all of these factors into consideration, it is less likely than not that this Veteran's hypertension is due to Agent Orange exposure. Resolving all doubt in the Veteran's favor, the Board finds that the evidence is in relative equipoise on the question of whether there is a nexus between the Veteran's hypertension and herbicide exposure. Drs. T.M. and M.W. both indicate that the Veteran's hypertension is due to herbicide exposure based on examination of the Veteran, review of medical and/or service records, education training and experience, and upon reasonable medical probability and reasonable medical certainty. Further, Dr. M.W. included a Science Daily article in support of his assertion of a link between the Veteran's hypertension and herbicide exposure. The VA examiner's opinion also tends to support Drs. T.M. and M.W.'s statements finding a nexus, as the VA examiner acknowledges that there are recent studies that indicate a possible association between hypertension and Agent Orange/herbicide. However, the VA examiner ultimately states that the cumulative body of evidence has been concluded to be insufficient to conclude with certainty that an association between high blood pressure and herbicide exposure exists, and notes flaws in some of the studies including failure to adjust for known risk factors. After resolving all doubt in the Veteran's favor, the Board finds the evidence presented in relative equipoise and service connection for hypertension is warranted. ORDER Service connection for hypertension is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's initial rating claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran contends that he is entitled to a rating in excess of 30 percent for ischemic heart disease, and asserted that he had one or more instances of congestive heart failure in the past year that entitled him to a rating of 60 percent under the Diagnostic Code criteria. A 60 percent rating is assigned under Diagnostic Code 7006 when there is a history of documented myocardial infarction, resulting in more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A maximum 100 percent rating is assigned with a history of documented myocardial infarction, resulting in chronic congestive heart failure, or; work-load of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. A VA examination and opinion were provided for the Veteran's claim, but inadequacies require a remand. The VA examiner stated in the June 2012 examination report that the Veteran does not have congestive heart failure. However, the VA examiner failed to analyze the Veteran's assertion that he had one or more instances of congestive heart failure in the past year, nor did it address Dr. M.W.'s June 2012 opinion that mentions symptoms of congestive heart failure while in the hospital and on one occasion early after the leaving the hospital. In this regard, the Board notes that the Veteran himself is a physician and thus competent to offer medical conclusions. As such, a new examination is required for the VA examiner to consider the Veteran's and his physician's assertions of additional episodes of congestive heart failure in the analysis. Furthermore, a new examination is required to determine the current level of severity for the Veteran's ischemic heart disease, including all diagnostic testing relevant to Diagnostic Code 7006 criteria, and a statement of the symptoms the Veteran experiences upon diagnostic testing. Additionally, while on remand, the Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for his ischemic heart disease since January 2012. Thereafter, any identified records should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any VA or non-VA healthcare provider who has treated him for ischemic heart disease since January 2012. After securing any necessary authorization from him, obtain all identified treatment records. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above development, schedule the Veteran for an appropriate VA examination in order to determine the current nature and severity of his ischemic heart disease. The claims file must be provided to the examiner for review in conjunction with the examination. The examiner must interview the Veteran, and record in detail the history of his ischemic heart disease. The examiner must consider the Veteran's history in all opinions and analysis rendered. In this regard, the examiner is advised that the Veteran himself is a physician. The examiner must conduct all diagnostic testing required for evaluating the current severity of ischemic heart disease, including METs and ejection fraction measurements as well as symptoms experienced upon diagnostic testing. The examiner should indicate whether the Veteran has congestive heart failure, and the frequency of episodes of congestive heart failure during each one year time period since January 2012, i.e., January 2012 to January 2013 and January 2013 to the present. In addressing whether the Veteran has congestive heart failure, or episodes of congestive heart failure, the VA examiner should consider the Veteran's assertion that he had one or more instances of congestive heart failure in the past year and Dr. M.W.'s June 2012 opinion that mentions symptoms of congestive heart failure while in the hospital and on one occasion early after the leaving the hospital. The examiner should also address the impact, if any, the Veteran's ischemic heart disease has on his employability. The rationale for any opinion offered should be provided. 3. After completing the above actions, to include any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs