Citation Nr: 1337537 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 11-22 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a heart disorder, to include ischemic heart disease due to herbicide exposure. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Y. Venters, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1966 to August 1969, including service in the Republic of Vietnam during the Vietnam War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied the Veteran's claim for service connection for a heart disorder. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA and VBMS) claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during his period of active service. 2. There is no competent and credible evidence establishing that the Veteran currently has a heart disorder. CONCLUSION OF LAW Heart disease, including ischemic heart disease, was not incurred in or aggravated by active military service, nor may such a disability be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & West Supp. 2013); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act 2000 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. 2013)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of 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 of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2013). The 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 notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. At 121. In this case, in a November 2009 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The November 2009 letter also informed the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The November 2010 rating decision reflects the initial adjudication of the claim after issuance of this letter. Hence, the November 2009 letter meets the VCAA's timing of notice requirement. 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 evidence associated with the claims file consists of service treatment records, a VA Agent Orange Registry examination, private medical records, and the Veteran's statements. The Board finds that no additional RO action to further develop the record in connection with the claim, prior to appellate consideration, is required. The Board notes that the Veteran was not afforded a VA examination with respect to his claim of entitlement to service connection for a heart disorder, to include ischemic heart disease due to herbicide exposure. The Veteran was not afforded a VA examination because there was no evidence relating a heart disorder to his military service. Generally, the evidence of record must "indicate" that a current disorder "may be associated" with a veteran's military service. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As will be explained in further detail in the below decision, the evidence of record does not demonstrate that the Veteran has a current heart disorder. Consequently, the Board finds that affording the Veteran a VA examination with respect to the claim of entitlement to service connection for a heart disorder, to include ischemic disease due to herbicide exposure, was not warranted. McLendon, 20 Vet. App. at 83. In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this 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. 539, 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). Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, and 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Additionally, a presumption of exposure to herbicides exists for veterans who served on active duty in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 C.F.R. § 3.307(a)(6) (2013). If a veteran was exposed to Agent Orange or another herbicide agent, service connection for any of the conditions listed under 38 C.F.R. § 3.309(e), including ischemic heart disease, may be presumed if the condition becomes manifest to a degree of 10 percent disabling or more. 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2013). In this case, the Veteran's service personnel records confirm that he served in Vietnam during the relevant period. Therefore, the Veteran is presumed to have been exposed to herbicides. However, the evidence does not show that the Veteran has been diagnosed with ischemic heart disease. None of the Veteran's medical examinations indicated that the Veteran had any heart problems. Since there was no current evidence of ischemic heart disease, the Board finds that service connection for ischemic heart disease is not warranted on a presumptive basis due to herbicide exposure. The Board notes that presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without them. 38 C.F.R. § 3.303(d) (2013). Even though the Veteran was not granted service connection using the presumptive standard, a Veteran is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Therefore, the Board has also evaluated service connection on a direct basis. Service treatment records (STRs) are negative for any complaints, diagnoses, or treatment for any heart disorders. All examinations during service show that the Veteran's heart was normal. The post-service medical evidence was negative for any complaints, treatment, or diagnoses of a heart disorder, including ischemic heart disease. Private medical records and the November 2009 VA Agent Orange Registry examination indicated that the Veteran's heart was normal. The Veteran claimed to have heart problems due to Agent Orange exposure. He reported that he was not directly sprayed with Agent Orange but he may have eaten or drank something contaminated with the substance. 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, a heart disorder falls outside the realm of common knowledge of a lay person. In this regard, while the Veteran can competently report the onset and symptoms related to a heart disorder, any actual diagnosis of a heart disorder requires objective testing to diagnose, and can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether symptoms the Veteran experienced in service or following service are in any way related to any current heart disorder requires medical expertise to determine because it involves a complex medical matter. To the extent that the Veteran himself believes that he has a current heart disorder that is due to service, including herbicide exposure, as a lay person, he is not shown to possess any specialized training in the medical field. The Veteran's opinion as to the etiology of his claimed current heart disorder is not competent medical evidence, as such question requires medical expertise to determine. Id. In any event, the Board concludes that the medical evidence, which reveals no findings of a heart disorder, is of greater probative value than the lay contentions of the Veteran. In this case, while there is current medical evidence of record dating from July 2002 through November 2009, none of this evidence reflects findings of a heart disorder. Accordingly, in the absence of competent and credible evidence of a current heart disorder during the period of the claim, consideration of service connection for a heart disorder, to include ischemic heart disease, is not warranted on any basis. The Board has also considered the holding in McClain v. Nicholson, 21 Vet. App. 319 (2007). However, at no time during the period on appeal did the Veteran receive a heart disorder diagnosis. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disabilities there can be no valid claims. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a heart disorder, to include ischemic heart disease, is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs