Citation Nr: 1337265	
Decision Date: 11/15/13    Archive Date: 11/26/13

DOCKET NO.  11-14 687	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for a heart disorder claimed as coronary artery disease (CAD), including as due to herbicide exposure.

2.  Whether the termination of the Veteran's service-connected disability compensation benefits from July 24, 2008 to November 16, 2010 due to fugitive felon status was proper.


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

Luke McCabe, Associate Counsel 


INTRODUCTION

The Veteran had active military service from December 1965 to November 1967, including a tour in the Republic of Vietnam during the Vietnam Era.

This appeal to the Board of Veterans' Appeals (Board) is from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, denied his claim of entitlement to service connection for CAD.

In his May 2011 substantive appeal (on VA Form 9), the Veteran requested a hearing before the Board.  In correspondence received in June 2011, he requested a videoconference hearing.  The hearing was scheduled for October 17, 2011; however, he withdrew his hearing request, so ultimately elected to cancel the proceeding and have the Board instead proceed with its adjudication of his claim based on the evidence already of record.  38 C.F.R. § 20.704(e) (2013).

With regards to the additional issue of the propriety of the RO's December 2010 determination that the Veteran was a fugitive felon so as to, in turn, warrant discontinuing his service-connected disability compensation benefits from July 24, 2008 to November 16, 2010, the record reflects that he filed a January 2011 notice of disagreement (NOD) in response to that determination.  However, no statement of the case (SOC) was provided in response to his NOD.  The filing of an NOD places a claim in appellate status, and the failure to issue an SOC in such a circumstance renders a claim procedurally defective.  See 38 C.F.R. §§ 19.9, 20.200, 20.201 (2013); see also Manlincon v. West, 12 Vet. App. 238 (1999).  Therefore, the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, to provide him this required SOC concerning this additional claim and to give him opportunity in response to also file a substantive appeal (VA Form 9 or equivalent statement) to complete the steps necessary to perfect his appeal of this additional claim to the Board.  38 C.F.R. § 20.200 (2013).

Aside from that, the Board also sees the Veteran submitted a request for a waiver of overpayment in February 2010.  But this claim has not been specifically adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  Therefore, since the Board does not presently have jurisdiction to consider this additional claim, it is referring this claim to the RO for appropriate development and consideration.  See 38 C.F.R. 19.9 (2013); Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO).

Therefore, in this decision the Board is only deciding whether the Veteran is entitled to service connection for CAD.


FINDING OF FACT

The Veteran has not been diagnosed with CAD or any other heart disorder during the pendency of this claim, meaning at any point since he filed this claim.


CONCLUSION OF LAW

It is not shown he has CAD or other heart disorder, much less as a result of disease or injury incurred in or aggravated by his military service or that may be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Standard of Review

In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") portion of the file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision.  See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail.  See id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  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 claimant).

The Board must assess the competency and credibility of all of the relevant evidence, so including both the medical and lay evidence, to in turn determine its ultimate probative weight, accounting for evidence that it finds persuasive or unpersuasive and providing reasons or bases for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  The standard of proof to be applied in decisions on claims for Veterans' benefits is the benefit-of-the-doubt rule 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 the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must weigh against a claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996). 


II.  Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enhanced VAs duties to notify and assist a claimant in substantiating a claim for VA benefits.  The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing VA regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).

A.  Duty to Notify

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) held that 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 obtain; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the Agency of Original Jurisdiction (AOJ) - which, here, is the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  However, if notice was not provided before initially adjudicating a claim or, if provided, it was inadequate or incomplete, to "cure" this timing defect in the provision of the notice and render it harmless VA need only provide all necessary notice, give the claimant opportunity to submit additional evidence and/or argument in response to it, and then readjudicate the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC).  This preserves the intended purpose of the notice.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006).


In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the Court held that a claim of entitlement to service connection consists of five elements:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date.  So notifying the claimant of what evidence is necessary to substantiate the claim under U.S.C.A. § 5103(a), the first notice element in Quartuccio, requires notice of all five of these elements - thus, including the "downstream" disability rating and effective date elements.  See id. at 486; Quartuccio, 16 Vet. App. at 187.

Here, prior to the initial rating decision in this matter in November 2010, a March 2010 letter informed the Veteran of all five elements of service connection, gave examples of the types of evidence he could submit in support of his claim, and provided notice of his and VA's respective responsibilities for obtaining relevant records and other evidence on his behalf.  Therefore, the duty to notify is satisfied.  See id.  

B.  Duty to Assist

VA's duty to assist under the VCAA includes helping the claimant obtain service treatment records (STRs) and other pertinent records, such as concerning his evaluation and treatment since service - whether from VA or private providers - as well as performing an examination or obtaining a medical opinion when necessary to make a decision on the claim.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).

(i) The Duty to Assist by Obtaining Relevant Records

To satisfy this obligation, the Veteran's STRs and post-service VA medical records were obtained for consideration.  In his May 2011 substantive appeal, the Veteran stated that "VA does not have all the evidence that VA needs to resolve the case in in the proper manner."  However, he has not identified and the record does not otherwise indicate any other records or evidence needing to be obtained.  Thus, the duty to obtain relevant records on his behalf is satisfied.  See 38 C.F.R. § 3.159(c).

(ii) The Duty to Assist by Providing an Examination for a Medical Opinion

This duty also has been met.  See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a).  This additional duty requires that VA provide a medical examination or obtain a medical opinion when necessary to decide a claim.  38 C.F.R. § 3.159(c)(4).  A medical examination or medical opinion is deemed to be necessary if the record does not contain sufficient competent medical evidence to decide the claim, but includes competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability, establishes that a Veteran suffered an event, injury, or disease in service, or has a disease or symptoms of a disease manifest during an applicable presumptive period, and indicates the claimed disability or symptoms may be associated with the established event, injury, or disease.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).

The Court has held that the types of evidence that "indicate" that a current disability "may be associated" with military service include credible evidence of continuity and symptomatology such as pain or other symptoms capable of lay observation.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  See also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (When determining whether a VA examination and opinion are required under 38 U.S.C. § 5103A(d)(2), the law requires competent evidence of a disability or persistent or recurrent symptoms of a disability, but does not require competent evidence of a nexus, only that the evidence suggest an association between the disability and service or a 
service-connected disability.).

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner.  Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged).  Id.  Indeed, even when this is challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  See Cox v. Nicholson, 20 Vet. App. 563 (2007).

Here, a VA examination of the Veteran was performed in April 2010.  The VA examination and opinion are adequate for deciding this claim.  The examiner conducted an examination of the Veteran, recorded the clinical findings, and provided a clear explanation for the opinion, which is consistent with the evidence of record and enables the Board to make an informed decision.  See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one).  There are no apparent inconsistencies or ambiguities in the examination report, and the Veteran has not challenged its adequacy, or thoroughness, or the competency of the examiner.  See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-1291.  Thus, the duty to provide a VA examination and opinion is satisfied.  38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312.

Although the April 2010 VA examiner did not have the claims file available to review, the examination report indicates the examiner reviewed the Veteran's medical records electronically.  This may have included considering records in the VA Compensation and Pension Record Interchange (CAPRI).  The Veteran's medical treatment during the pendency of this claim was through VA.  Therefore, the VA examiner's access to the Veteran's VA treatment records through VA's electronic records system was essentially equivalent to reviewing the pertinent evidence in the claims file, as is evident from the report's discussion of previous laboratory data and the Veteran's medical history.  Furthermore, the central issue on which this case turns is whether the Veteran currently has a heart disorder, including CAD, and thus a review of the STRs (which, incidentally, are completely unremarkable for any heart conditions) would not have affected the examiner's findings with regard to the presence versus absence of a current heart disorder.  Moreover, the Veteran does not contend that a heart disorder manifested during his service.  Thus, the fact that the claims file, in a physical sense, was unavailable to the examiner for review was harmless and had no effect on the outcome of this claim or viability of the opinion.

C.  VCAA Conclusion

In sum, VA's duties to notify and assist under the VCAA have been satisfied.  The Veteran has had ample opportunity to participate effectively in the development of his claim.  See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")).  As shown above, any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication."  See Mayfield v. Nicholson, 19 Vet. App. 103, 116 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  Thus, any error in the notice or assistance provided was harmless, and no prejudice exists.  See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show that the error was harmful by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that the Court must take due account of the rule of prejudicial error).  Accordingly, the Board may proceed with appellate review of this claim.

III.  Analysis

In claiming entitlement to service connection for CAD, the Veteran contends this condition is the result of his in-service exposure to herbicides while serving in Vietnam.  But for the following reasons and bases, the Board finds that service connection is not warranted for this claimed condition.

Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Entitlement to service connection may be established on a direct basis with evidence showing:  (1) the Veteran has the claimed disability or, at the very least, that he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement).  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Under 38 C.F.R. § 3.303(b), claims for certain chronic diseases-namely those listed in 38 C.F.R. § 3.309(a)-benefit from a somewhat more relaxed evidentiary standard.  See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2012) (holding that "[t]he clear purpose of the regulation is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases").  When a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  In order to establish the existence of a chronic disease in service, the evidence must show a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  Id.  Thus, the mere manifestation during service of potentially relevant symptoms (such as joint pain or abnormal heart action in claims for arthritis or heart disease, for example) does not establish a chronic disease at that time unless the identity of the disease is established and its chronicity may not be legitimately questioned.  Id.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  Id.

Not all diseases that may be considered "chronic" from a medical standpoint qualify for the relaxed evidentiary standard under section 3.303(b).  Rather, the Federal Circuit Court held that this subsection only applies to the specific chronic diseases listed in 38 C.F.R. § 3.309(a).  Walker, 708 F.3d at 1338.  Thus, if the claimant does not have one of the chronic diseases enumerated in section 3.309(a), then the more relaxed continuity-of-symptomatology standard does not apply, and the "nexus" requirement of the three-element test must be met.  Id. at 1338-39

Because diseases of the cardiovascular system are defined as chronic diseases in section 3.309(a), the provisions of subsection 3.303(b) for chronic disabilities apply, and the claim may be established by evidence of a continuity of symptomatology after service.  See Walker, 708 F.3d at 1338-1339. 

Cardiovascular disorders are also eligible for presumptive service connection.  Specifically, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for cardiovascular-renal disease may be established on a presumptive basis by showing that the disease manifested to a degree of 10 percent or more within one year from the date of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307; 3.309(a).  However, this presumption will be rebutted if there is affirmative evidence to the contrary.  38 C.F.R. § 3.307(d). 

Also, if a Veteran was exposed to an herbicide agent (including Agent Orange) during active military, naval, or air service, certain diseases, including CAD (also known as 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).

A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (Vietnam era) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence establishing that he was not exposed to any such agent during that service.  The last date on which such a Veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 

Accordingly, presumptive service connection for CAD is available both under § 3.309(a) and § 3.309(e).

The Veteran's military records verify that he served in the Republic of Vietnam during the Vietnam era, so it is presumed that he was exposed to Agent Orange while there.  However, the evidence does not reflect that he has CAD or any other heart disorder, or that he has had a heart disorder during the pendency of this claim, which was submitted in March 2010.

His STRs are unremarkable for complaints regarding or treatment for a heart condition of any sort.  His military service ended in November 1967, so the presumptive period of § 3.309(a) one year later, meaning in November 1968.

In the many years since, post-service, a December 2003 VA treatment record shows that he complained of "recurrent 'chest pressures' on and off, once or twice a week," which he maintained were not related to physical activity or eating, lasted up to 30 minutes, and were without palpitations and dizziness.  The assessment was rule out CAD.  A subsequent April 2004 Thallium stress test, which was done to confirm or rule out CAD, reflected normal, equal perfusion in the entire myocardium and no evidence of photopenic defect during reperfusion phase.  A contemporaneous April 2004 VA treatment record shows the Veteran reported no chest pains and presented with a regular heart rhythm, normal S1 and S2, no murmur, and no gallop.  There are no subsequent diagnoses of any heart abnormality based on clinical findings.

During a March 2007 VA examination, the Veteran denied a history of heart disease and a physical examination revealed that the Veteran's heart had regular rate and rhythm and no murmur, gallop, or ectopy.  A January 2009 VA examination report reflects a normal cardiac examination.  Similarly, a February 2009 VA treatment record notes the Veteran's denial of chest pain, palpitations, dyspnea on exertion, and orthopnea and a finding of regular heart rhythm, normal S1 and S2, no murmur, and no gallop.  Additionally, a July 2010 VA treatment record documents that he presented with normal S1 and S2 and that he denied having shortness of breath, chest pains, or increased edema.

During his April 2010 VA heart examination, he claimed that he had CAD.  Specifically, he reported that, although he had no established diagnosis of a heart disorder at the time of that examination, he had atypical chest pain that was nonexertional.  The examiner noted the Veteran had shortness of breath with exertion and that he had been diagnosed with deconditioning by a VA cardiologist.  The Veteran reported being able to walk 1/2 mile and up two to three flights of stairs before having to stop because of shortness of breath.  The examiner did not see a history of cerebrovascular accident (CVA, i.e., stroke) or myocardial infarction (MI, i.e., heart attack) and no history of pericarditis, rheumatic heart disease, heart transplant or surgery, syphilitic heart disease, congestive heart failure, dizziness, or syncope.  Upon physical examination, the Veteran was in no acute distress.  A cardiac examination reflected normal S1 and S2, regular rate and rhythm, and no murmur, rub, or gallop.  The examiner reviewed the Veteran's laboratory data and observed he had no diagnosis of CAD.  The examiner noted the normal cardiac silhouette shown by January 2009 chest X-rays, the normal March 2009 EKG reflecting normal sinus rhythm, the July 2008 echocardiogram showing an ejection fraction greater than 55% and 1+ aortic insufficiency; and the April 2004 stress test showing no ischemic ST changes.  Additionally, the examiner found that, clinically, the Veteran had an exercise capacity of 10 metabolic equivalents (METS), meaning multiples of resting oxygen uptake.  Based on his examination of the Veteran and review of the laboratory data, the examiner concluded that a heart disorder, including CAD, was not identified.

The Board affords the April 2010 VA heart examination and opinion considerable probative weight, as it reflects the conclusions of a medical professional who examined the Veteran personally and reviewed the pertinent medical history.  Moreover, the examiner's opinion that the Veteran does not have a diagnosis of a heart disorder is based on laboratory findings, including prior X-ray, electrocardiogram (EKG), echocardiogram and stress test results, consideration of the Veteran's statements and reported history, and physical examination of the Veteran.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); 
Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

The Board has considered the Veteran's contention that he has CAD.  But, as a layman, he simply does not have the medical expertise to render a competent opinion as to whether he has a current heart disorder based on symptoms such as chest pain or shortness of breath, as this is a medical determination that is too complex to be made based on mere lay observation alone.  See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007) (observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature").  Indeed, whether CAD is present can only be determined based on diagnostic testing.  Thus, the Veteran's contention that he has a current heart disorder does not by itself constitute competent evidence.  See Layno v. Brown, 6 Vet. App. 465, 469- 71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise).  

The Board therefore accords more weight to the findings of the VA examiner against a current heart disorder, as the examiner is medical professional qualified to make such a determination.  See King, 700 F.3d at 1345 (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question); see also Layno, 6 Vet. App. at 469.

In the absence of competent evidence of a current heart disorder during the pendency of this appeal, service connection may not be established on any basis, including as a result of exposure to herbicides.  See Shedden, 381 F.3d at 1166-67 (holding that service connection requires, among other things, evidence of a current disability).  Even though it is presumed the Veteran was exposed to Agent Orange during his service in Vietnam, service connection may not be granted for any condition unless it is first established the Veteran has the condition.  See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim).

In Brammer v. Derwinski, 3 Vet. App. 223 (1992), the Court noted that Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in disability.  See also Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists).  A "current disability" means a disability shown by competent evidence to exist.  Chelte v. Brown, 10 Vet. App. 268 (1997).


Here, though, despite the Veteran's overseas service in the Republic of Vietnam during the Vietnam era and presumption of Agent Orange exposure while there, the weight of the competent medical evidence is against finding that he has a heart disorder of any sort, so including CAD, either currently or at any point since the filing of this claim.  As already discussed, his STRs are completely unremarkable for any indication of a heart disorder, including CAD.  Additionally, his post-service medical records contain numerous notations of normal heart function that are supported by extensive laboratory findings, including January 2009 chest X-rays, a March 2009 EKG, a July 2008 echocardiogram, and the April 2004 stress test.  Therefore, the competent evidence shows the Veteran has not had a heart disorder, including CAD, during the pendency of this claim.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").

Additionally, since there is no evidence of CAD, certainly not to the required minimum compensable degree of at least 10-percent disabling, within one year of the Veteran's separation from military service, the Board also may not otherwise presume this condition was incurred during his service.  See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7005.  Instead, the first mention of CAD (which, in any event, has been outweighed by the more probative evidence, as discussed above) was during VA treatment in December 2003, more than 3 decades after the conclusion of the Veteran's service.  Thus, service connection is not warranted on this alternative presumptive basis, either.  See 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.

For these reasons and bases, the preponderance of the evidence is against this claim. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for CAD is denied.  See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.



ORDER

Entitlement to service connection for a heart disorder, claimed as CAD, including as due to herbicide exposure, is denied.


REMAND

As already alluded to, a remand is required regarding the remaining issue of the propriety of discontinuing the Veteran's service-connected disability compensation benefits.  In a December 2010 decision, the RO determined he was overpaid benefits from July 24, 2008 to November 16, 2010, because of his status as a fugitive felon during that time.  He was sent a subsequent letter in December 2010, which calculated his overpayment amount to be $83,278.03.  In January 2011, in response, he submitted a timely NOD regarding the determination that he was a fugitive felon.  38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2013) (providing, in pertinent part, that an appeal consists of a timely filed NOD in writing); see also 38 C.F.R. §§ 20.201 (2013) (content of a NOD); 20.302(a) (2013) (time limits for submitting an NOD).

He has not been provided an SOC concerning this issue, however.  The Court has held that, where the record contains an NOD as to an issue, but no SOC, the issue must be remanded (rather than merely referred) to the agency of original jurisdiction (AOJ), which, here, is the RO, to provide the Veteran this necessary SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also 38 C.F.R. §§ 19.26(d), 19.29, 19.30 (2013); Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92).  After issuance of the SOC, he must perfect the appeal by filing a timely substantive appeal (VA Form 9 or equivalent) in order for this issue to be certified to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.302 (2013); Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130.

Accordingly, this issue is REMANDED for the following additional development and consideration: 

1.  Verify that all notification required by the VCAA has been completed as concerning the termination of the Veteran's service-connected disability compensation for the time period in dispute.

2.  Provide the Veteran an SOC concerning this issue of the propriety of the creation of the debt now calculated in the amount of $83,278.03, to include whether he was properly determined to be a fugitive felon resulting in termination of his compensation payments for the period July 24, 2008 to November 16, 2010 in light of all the evidence of record.  

3.  Advise the Veteran that he must file a substantive appeal (VA Form 9 or equivalent statement) concerning this particular issue, in response to the SOC, in order to perfect his appeal of this additional claim to the Board.  See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, etc.  As well, advise him of the amount of time he has for doing this.  38 C.F.R. §§ 20.302, 20.303, 20.304, 20.305, and 20.306.  Only if he perfects his appeal of this issue should it be returned to the Board for further appellate consideration.

By this remand, the Board intimates no opinion as to any final outcome warranted concerning this remaining issue.  No action is required of the Veteran until he is notified by VA.  He has the right to submit additional evidence and argument concerning this issue the Board is remanding.  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 of Veterans' Appeals 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. 2013).



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs