Citation Nr: 1335515 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-30 828 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a heart disorder, to include ischemic heart disease, claimed as due to exposure to herbicides (Agent Orange). REPRESENTATION Appellant represented by: South Dakota Division of Veterans Affairs ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran had active military service from July 1964 to June 1966. This appeal to the Board of Veterans' Appeals (Board) arose from a November 2011 rating decision in which the RO denied service connection for ischemic heart disease. In June 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in August 2012, and the Veteran filed a substantive appeal (via a VA form 9, Appeal to the Board of Veterans' Appeals) in October 2012. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim on appeal has been accomplished. 2. As the Veteran served in Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicides while on active duty in Vietnam. 3. The Veteran does not currently have a heart disorder, to include ischemic heart disease. CONCLUSION OF LAW The Veteran does not have a heart disorder, to include ischemic heart disease, which was incurred or aggravated in serviced. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.313 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction. Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A September 2011 pre-rating letter provided pertinent notice to the Veteran in connection with his claim for service connection for ischemic heart disease. That letter indicated what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence would be obtained by VA. The letter also provided general information pertaining to VA's assignment of disability ratings and effective dates (in the event service connection is granted), as well as the type of evidence that affects those determinations. Hence, the September 2011 letter meets the VCAA's content and timing of notice requirements. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file includes the Veteran's VA private treatment records and a VA examination report. Also of record and considered in connection with the appeal are various written statements provided by the Veteran. The Board finds that no additional RO action to further develop the record in connection with the claim for service connection, prior to appellate consideration, is required. In summary, the duties imposed by the VCAA have been considered and satisfied. The Veteran has been notified and made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including cardiovascular disease, shall be presumed to have been incurred in service if manifested to a compensable degree within a prescribed period post service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The United States Court of Appeals for the Federal Circuit recently clarified that the provisions of 38 C.F.R. § 3.303(b) pertaining to the award of service connection on the basis of continuity of symptomatology (in lieu of a medical opinion) apply to chronic diseases as defined in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Pertinent to the current appeal, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including ischemic heart disease, shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Thus, a presumption of service connection arises for these veterans (presumed exposed to Agent Orange) or, alternatively, a veteran without appropriate service (as described above) but with competent evidence of herbicide exposure, who develops one of the identified diseases. The Veteran contends that he has a heart disorder that was caused by exposure to herbicides. He served in Vietnam from December 1965 to June 1966. Thus, it is presumed that he was exposed to herbicides in service. Ischemic heart disease is among the list of disabilities for which presumptive service connection is available (see 38 C.F.R. § 3.309 (e)) for those who served in Vietnam and are presumed to have been exposed to Agent Orange. However, the Veteran is not shown to have ischemic heart disease or any other heart disorder. Thus, the Board finds that this claim must be denied on the basis of no current disability. In March 2011, the Veteran was afforded a VA examination related to his claim for service connection for diabetes. In the examination report, the examiner noted the following: He states that in 1979 he was hospitalized for chest pain he thinks for three days . . . Since that time, he has had no chest pain, dyspnea, fatigue, dizziness or syncope, no cardiac surgery, bypass, valvular surgery, angioplasty or stenting. He is physically active. He has had no heart surgery. He has not had any chest pain or taken any medications for same. He has not had history otherwise of any ischemic coronary disease. Has not been to the clinic for any type of chest pain in the last 32 years. He has had no restrictions....[I]t is my impression that he was admitted for some type of chest pain or discomfort, including a diagnosis of cholecystitis, but there is not enough information there to suggest that he had an ischemic coronary event at that time and it is less likely that he has any documented coronary artery ischemic disease at this time. In November 2011, the Veteran was afforded a VA heart examination. The examiner determined that the Veteran does not currently have ischemic heart disease or any other heart condition. The examiner noted that he reviewed the Veteran's private medical records, which included a sheet that stated, "9-18 to 9-29-79 in Hosp with ischemic heart episode and cholecystitis," followed by an underlined note, "EKG REMAINED NORMAL." The examiner concluded that the Veteran did not currently have ischemic heart disease. The report states: This examiner notes that the prior notation was made in 9-79 but then notes normal EKG. This examiner notes that clinically there would be EKG changes with an ischemic event. All other noted EKG[]s written on this evidence shows normal EKG[]s. Per private notes there is no diagnosis of CAD and per the private notes the stress test done in 2007 and did not note any abnormalities. It is based on this clinical evidence that the above notations are made, therefore no other testing was done at this time as there is no clinical evidence of ischemic heart disease. The Veteran's private medical records, dated from February 1968 to March 1980 and from October 2007 to August 2010, have been reviewed. These records document only a single occurrence of an "ischemic heart episode" in 1979, which was fully considered by the March 2011 and November 2011 examiners. The Board accepts the findings and opinion expressed by the November 2011 VA examiner, in particular, as probative of the current disability question, as they were based on examination of the Veteran and full consideration of his documented history and assertions. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)); and Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The November 2011 examiner's findings and opinion are also consistent with the other evidence of record, to include the March 2011 examiner's findings. The only document of record that refers to a heart condition is the record noting a single notation of "ischemic heart episode and cholecystitis" in September 1979. As noted above, both November 2011 and March 2011 examiners addressed this medical record and determined that this episode likely was not an ischemic coronary event because of the subsequent normal EKG tests. Notably, this event occurred more than 30 years before the Veteran filed his claim for service connection, and thus it did not occur at a time pertinent to this appeal. The Veteran has not presented or identified any existing medical opinion evidence that, in fact, supports a finding that he has, or at any time pertinent to the appeal has had, a heart condition for which service connection is sought. The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110. Thus, where, as here, medical evidence indicates that the Veteran does not have the disability for which service connection is sought, and there is no contrary, competent evidence, there can be no valid claim for service connection-on any basis. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992Brammer, 3 Vet. App. at 225. For all the foregoing reasons, the Board finds that service connection for a heart disorder, to include ischemic heart disease, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a heart disorder, to include ischemic heart disease, claimed as to due to exposure to herbicides (Agent Orange), is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs