Citation Nr: 1334346 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 07-36 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a heart disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from May 1970 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The case was remanded in June 2011 to obtain treatment records, verify the Veteran's herbicide exposure and to provide him with notice of amendments to pertinent regulations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also remanded the issue of service connection for posttraumatic stress disorder (PTSD). In a June 2012 rating decision, the Appeals Management Center (AMC) granted service connection for PTSD, evaluated as 100 percent disabling. As the Veteran has not expressed disagreement with the effective date assigned, the Board concludes that only the issue listed on the title page remains on appeal. FINDING OF FACT A heart disorder was not present during service and a current heart disorder did not develop as a result of any incident during service. CONCLUSION OF LAW A heart disorder was not incurred or aggravated in service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 & 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The notice 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. Such notice 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). The Veteran was notified in letters dated in July 2005, December 2007, June 2011, August 2011, September 2011 and April 2012 regarding the type of evidence necessary to establish his claims. He was instructed how to establish service connection and of what information was needed to confirm in-service exposure to herbicides. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. A March 2006 letter notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's service treatment records (STRs), personnel records, post-service medical records and Social Security Administration (SSA) records. The Board finds that a medical opinion on the question of service connection for a heart disorder is not required because opinions are only necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but contains: 1) competent evidence of diagnosed disability or symptoms of disability, 2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, as described in detail below, there is insufficient evidence establishing that the Veteran suffered an event, injury or disease in service and that a current heart disorder may be related to his service. See Duenas v. Principi, 18 Vet. App. 512 (2004). Consequently, given the standard of the regulation, the Board finds that VA did not have a duty to assist that was unmet. VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.307(a)(6). The presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a veteran does not have a disease listed at 38 C.F.R. § 3.309(e), he or she is presumed to have been exposed to herbicides if he or she served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In general, for service connection to be granted for most of the presumed diseases, they must be manifested to a degree of 10 percent or more at any time after service. Chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, however, must be manifest to a degree of 10 percent within one year after the last date on which the veteran performed active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. See 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(ii); Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). The diseases for which service connection may be presumed to be due to an association with herbicide agents include AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset 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 osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). Further, Note 2 under 38 C.F.R. § 3.309(e) states that, for the purposes of that section, "the term acute and subacute peripheral neuropathy means transient peripheral neuropathy that appears within weeks or months of exposure to an herbicide agent and resolves within two years of the date of onset." Even where the criteria for service connection under the provisions of 38 C.F.R. § 3.309(e) are not met, a veteran is not precluded from establishing entitlement to service connection by proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Veteran contends that he has a heart disorder that is due to in-service herbicide exposure. See, e.g., May 2005 claim. Specifically, he has identified two sources of herbicide exposure. The Veteran contends that while on board the USS Jouett when it was in Vietnam waters, he ate contaminated fruit that came from locals pulling up alongside the ship. See July 2005 statement; July 2005 report of contact with the Veteran. The July 2005 report of contact shows that the Veteran stated that he "did not step foot on land in Vietnam." Compared to his previous assertion of not stepping foot in Vietnam, the Veteran also contends that he left the ship and set foot in the Republic of Vietnam when it was docked at Da Nang. See May 2006 and September 2011 statements. In a September 2011 statement, he indicated that such exposure occurred around Christmas. The Veteran's STRs show no treatment for, or diagnosis of, any heart disorder. His September 1971 discharge examination revealed a clinically normal heart; chest X-rays were essentially negative. In his report of medical history, the Veteran denied symptoms such as shortness of breath, pain or pressure in chest, and palpitation or pounding heart. There is no indication in the Veteran's STRs that he incurred an event, injury or disease to his heart or cardiovascular system. The Veteran's personnel records do not show that he was in Vietnam at any time during his service. They confirm that he was stationed on board the USS Jouett in 1970 and 1971 and received the Vietnam Service Medal and Vietnam Campaign Medal in April 1971. He was absent without official leave (AWOL) from the ship from July 1971 to August 1971 when it was stationed in California. There is no indication in his service records that he was exposed to herbicides in service. The RO and AMC made various attempts to verify whether the Veteran was exposed to herbicides in service. A July 2005 response from the National Personnel Records Center (NPRC) shows that they were unable to confirm whether the Veteran had in-country service in the Republic of Vietnam. The USS Jouett was in the official waters of the Republic of Vietnam; however, the service record provided no conclusive proof that the Veteran was in-country. A May 2009 memorandum from the United States Army and Joint Services Records Research Center (JSRRC) shows that they had found no evidence that Navy or Coast Guard ships transported tactical herbicides to the Republic of Vietnam or that ships operating off the coast of Vietnam use, stored, tested or transported tactical herbicides. JSRRC concluded that they could provide no evidence to support a veteran's claim of exposure to tactical herbicide agents while serving aboard a Navy or Coast Guard ship during the Vietnam era. A September 2011 response from the Defense Personnel Records Information Retrieval System (DPRIS) shows that the command history from 1970-1971 for the USS Jouett was reviewed. The ship departed California in October 1970 and conducted operations in the Gulf of Tonkin from October 1970 to November 1970, December 1970 to January 1971, and from February 1971 to March 1971. It made ports of call in Subic Bay, Republic of the Philippines, Singapore, Hong Kong, Australia, and New Zealand. It returned to California in May 1971. The history did not document that the ship docked, transited inland waterways or that personnel stepped foot in the Republic of Vietnam. Another response from DPRIS was received in October 2011. The response indicates that the deck logs for the USS Jouett for November 1970, December 1970 and January 1971 were reviewed. The deck logs concurred with the ship's command history. The deck logs did not document that the ship docked, transited inland waterways or that personnel stepped foot in the Republic of Vietnam. An October 2011 memorandum set forth VA's its efforts to verify the Veteran's herbicide exposure. This memorandum indicates that the Veteran's service in the Republic of Vietnam could not be verified. Furthermore, the Veterans Benefits Administration 's list of Navy and Coast Guard Ships Associated with Service in Vietnam and Exposure to Herbicide Agents does not support the Veteran's assertions of exposure to herbicides from the USS Jouett. (http://vbaw.vba.va.gov/bl/21/rating/VENavyShip.htm). The list of ships, most recently updated on July 9, 2013, shows that the USS Jouett sent whaleboat ashore from Da Nang Harbor for mission briefings in 1968. The Veteran did not enter service until 1970. The list does not indicate that the ship operated on Vietnam's inland waterways; docked to shore or pier in Vietnam; or that it operated on Vietnam's close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. This list does not indicate that anyone went ashore in 1970 or 1971. According to post-service records, the Veteran had chest pain in March 2000. He was shown to have mitral valve prolapse and diastolic dysfunction. VA treatment records beginning in May 2004 show a diagnosis of coronary artery disease, which is a type of ischemic heart disease. None of his treatment records contain any opinions relating a heart disorder to the Veteran's military service. The Veteran has not contended that any medical professional opined that a heart disorder was related to his military service. Based on a review of the evidence, the Board concludes that service connection for a heart disorder is not warranted. Although the evidence shows that the Veteran currently has coronary artery disease, it does not show that any diagnosed heart disorder is related to his military service. Initially, the Board finds that the Veteran does not have confirmed exposure to herbicides in service. With regards to his contention that he was exposed to herbicides from eating contaminated fruit, no evidence has been presented to confirm such exposure. In this case, the evidence fails to show that the Veteran was exposed to herbicides due to eating fruit as he contended. As for his contention that he was exposed while going ashore to Vietnam from the USS Jouett, the evidence fails to show that he was in Vietnam. The only date that Veteran has provided is Christmas; the year was not provided, but the only year that the Veteran had service in the month of December was in 1970. However, the evidence as discussed above does not support the Veteran's assertion that he stepped foot on the shores of Vietnam. Two responses from DPRIS indicate that there was no verification that the ship docked, transited inland waterways or that personnel stepped foot in the Republic of Vietnam in 1970 and 1971. The NPRC was also unable to confirm exposure to herbicides. Moreover, the list of ships maintained by VA as discussed above does not support the Veteran's assertion of being in Vietnam when stationed on the USS Jouett. That list shows that a whaleboat was sent ashore in 1968, two years before the Veteran entered service. In this case, the Veteran's personnel records do not show that he was ever in Vietnam. No evidence supports the Veteran's assertion that he went ashore to Vietnam. As such, the Board concludes that the Veteran was not exposed to herbicides in Vietnam. The evidence also does not show that the Veteran incurred any event, injury or disease to his heart or that a heart disorder had its onset in service. Indeed, the Veteran has not contended as such. His STRs are silent for any complaints associated with a heart disorder; chest X-rays at discharge were essentially negative. In this case, the contemporaneous service records and post-service treatment records all fail to show that he incurred an event, injury or disease to his heart or cardiovascular system in service. Therefore, the evidence does not support a finding that the in-service incurrence or aggravation of an event, injury or disease to his heart or cardiovascular system actually occurred. Absent an in-service event, injury or disease, there is no nexus evidence to support a finding of service connection. In this case, the first evidence of heart problems is in 2000. The United States Court of Appeals for Veterans Claims (Court) has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition). See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability). Thus, the lack of any evidence of cardiac complaints, symptoms, or findings for over two decades between the period of active service and the earliest evidence of a heart disorder is itself evidence which tends to show that a heart disorder did not have its onset in service or for many years thereafter. The claims folder contains no competent evidence of a heart disorder being associated with the Veteran's active duty. Without evidence of an in-service event, injury, or disease to the Veteran's heart or cardiovascular system or competent evidence of an association between a heart disorder and his active duty, service connection for a heart disorder is not warranted. 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, the etiology of a heart disorder falls outside the realm of common knowledge of a lay person. See Jandreau at 1377 n.4 (lay persons not competent to diagnose cancer). The Veteran's own assertions as to etiology have no probative value. Without competent and credible evidence of an association between a heart disorder and the Veteran's active duty, service connection for a heart disorder is not warranted. Based on this evidentiary posture, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection for a heart disorder. As the preponderance of the evidence is against this issue, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to service connection for a heart disorder is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to service connection for a heart disorder is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs