Citation Nr: 1337877 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 04-42 625 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a heart disorder, to include as a result of herbicide exposure, or secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from August 1973 to June 1977. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a heart disorder. The Board notes that the Veteran failed to appear for a scheduled Decision Review Officer (DRO) hearing in July 2006 and a Travel Board hearing in September 2007. He did not request that the hearings be rescheduled. Therefore, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(d) (2012). The Board remanded the claim in February 2008, July 2012, and April 2013, for further development. The case is now ready for appellate review. FINDINGS OF FACT 1. The evidence of record does not show that the Veteran had active service in the Republic of Vietnam, that he served aboard a ship that docked in Vietnam, or that he was ever on the landmass or inland waters of Vietnam during the Vietnam era. 2. There is no competent and credible evidence establishing that the Veteran was actually exposed to herbicides during his service. 3. The competent evidence of record does not show a heart disorder in service or for many years thereafter; and, there is no competent evidence suggesting that a heart disorder is related to service, to include as due to herbicide exposure, or is due to or aggravated by his service-connected PTSD. CONCLUSIONS OF LAW 1. A heart disorder was not incurred in or aggravated by active service, nor may it be presumed to have been incurred in or aggravated by service, including from herbicide exposure in Vietnam. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.313 (2013). 2. A heart disorder is not the result of or aggravated by service-connected PTSD. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the issue on appeal, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) ; 38 C.F.R. § 3.159(b) ; Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in December 2001 of the criteria for establishing service connection, in September 2009 for secondary service connection, and again in September 2011 for herbicide exposure, the evidence required in this regard, and his and VA's respective duties for obtaining evidence. He also was notified of how VA determines disability ratings and effective dates if service connection is awarded in March 2006. Nothing more was required. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The RO obtained the Veteran's service treatment records and VA treatment records. He submitted private treatment records and personal statements in support of his appeal. The Veteran underwent VA examinations in October 2011 and June 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The October 2011 VA examination did not adhere to the Board's February 2008 remand instructions and, therefore, the opinion provided in connection with the examination was not found to be adequate for rating purposes. Therefore, he was provided an additional VA examination in June 2013. This examination was adequate, as it was predicated on a full reading of the Veteran's medical records in the claims file. All of the pertinent evidence of record was considered, to include the statements of the Veteran, and the examiner provided a rationale for the opinion stated, relying on and citing to the records reviewed. The Veteran was provided an opportunity to set forth his contentions during a DRO and Travel Board hearing, and he did not report. In view of the foregoing, the Board finds no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Direct service connection requires competent evidence showing: (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). Where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and coronary artery disease becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in 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 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). A claimant 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the claimant was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). A claimant is entitled to a presumption of service connection if he is diagnosed with ischemic heart disease as associated with exposure to certain herbicide agents, if he served in the Republic of Vietnam during a prescribed period. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313(a); see also Haas v. Peake, 525 F.3d 1168, 1197 (Fed. Cir. 2008) (upholding VA's interpretation of § 3.307(a)(6)(iii) as requiring the service member's presence at some point on the landmass or the inland waters of Vietnam). Inland waterways are not defined in VA regulations; however, the Board may refer to the VA Adjudication Procedure Manual for interpretive guidance. Inland waterways include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. VA Adjudication Procedure Manual M21-1MR, pt. IV, subpt. ii, ch. 2, § C.10.k. Service aboard a ship that anchored in an open deep-water harbor, such as Da Nang, Vung Tau, or Cam Ranh Bay, along the Vietnam coast, does not constitute inland waterway service or qualify as docking to the shore. Id. It has been established that some offshore U.S. Navy and Coast Guard ships operated temporarily on Vietnam's inland waterways or docked to the shore; and, certain ships operated primarily on the inland waterways rather than offshore. Veterans who served aboard these ships qualify for the presumption of herbicide exposure. Gun line ships, aircraft carriers, as well as supply and support ships are collectively referred to as the "Blue Water" navy because they operated on the blue-colored waters of the open ocean. Although some Blue Water Navy destroyers were involved with enemy interdiction, the majority of those operations were conducted by smaller vessels based along the coast or within the river systems of South Vietnam. These vessels are collectively referred to as the "Brown Water" navy because they operated on the muddy, brown-colored inland waterways of Vietnam. In general, patrolling of close coastal waters and the larger rivers was conducted by 50-foot swift boats while patrolling of smaller rivers and waterways was carried out by 30-foot river patrol boats. See Training Letter 10-06, Adjudicating Disability Claims Based on Herbicide Exposure from U.S. Navy and Coast Guard Veterans of the Vietnam Era, Sept. 9, 2010 (letter issued by VA Compensation and Pension Service). Although operations on the inland waterways of Vietnam were primarily conducted by Brown Water Navy and Coast Guard vessels, some larger Blue Water Navy vessels periodically entered the inland waterways to provide gunfire support or deliver troops or destroyers that entered a river such as the Saigon River in the southern delta area. Following these temporary inland waterway operations, destroyers would return to patrolling the offshore gun line or travel farther out to sea for aircraft carrier escort duty. A number of Blue Water Navy amphibious assault and supply vessels also periodically entered inland waterways to deliver troops for combat missions or supplies for units stationed on the rivers. Id. In order for the presumption of exposure to Agent Orange to be extended to a Blue Water Navy veteran, the evidence must show that the Veteran's ship operated temporarily on the inland waterways of Vietnam or that the veteran's ship docked to the shore or a pier. Id. Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability, not to the natural progress of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Under the current version of 38 C.F.R. § 3.310, VA will not concede such aggravation unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation and by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The RO will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (rating schedule) and determine the extent of aggravation by deducting the baseline level of severity as well as any increase in severity due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(a) (2013). In order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102 (2013). Service treatment records are devoid of findings, treatment, or diagnoses related to heart disease. In 1992, 15 years after service discharge, the Veteran was diagnosed with coronary artery disease (CAD) and underwent coronary catheterization and balloon angioplasty at St. Mary's Hospital in Milwaukee, Wisconsin. He also had another myocardial infarction (MI) in 1999. As this is a current disability, what remains to be shown is that this condition was incurred in or aggravated by his active service, to include as based on exposure to herbicides, or secondary to his service-connected PTSD. Here, the Veteran contends, in part, that his heart disorder is due to herbicide exposure, which he claims occurred while serving aboard the USS Albert David. He makes no contention to physically setting foot in Vietnam or that the USS Albert David docked in Vietnam. He stated that his ship was on a lot of gunfire missions and while on these missions, they were led to understand that they were firing into North Vietnam. At the outset, the Board notes that service in Vietnam coastal waters alone does not entitle a veteran to presumptive service connection for herbicide-related disabilities. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Regarding the Veteran's assertion of inland waterway service, the evidence of record, along with VA-recognized findings, does not support such a conclusion. Deck logs associated with the claims folder provide no evidence of "brown water exposure." Continuously updated non-exhaustive lists of U.S. Navy ships that have operated at some point in the inland waterways of Vietnam or else were moored at some location in the Republic of Vietnam, maintained by VA's Compensation & Pension (C&P) service, do not corroborate the Veteran's claim. The Board finds that the resources checked by VA do not suggest that the USS Albert David was ever in inland waterways, making the chance that additional research could substantiate the Veteran's claim unlikely. Further, the evidence does not show, nor does the Veteran allege, that the USS Albert David was ever in inland waterways. With regard to the Veteran's lay statement asserting inland waterway service, the Board is not obligated to accept as fact statements made regarding non-medical activities, such as where the Veteran was stationed at any given time. Compare Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) with Bardwell v. Shinseki, 24 Vet. App. 36 (2010). The Veteran specifically stated that he was made to understand that the USS Albert David was on a gun mission shooting into North Vietnam. He does not indicate that he was in inland waterways or docked at anytime in Vietnam. Shooting at North Vietnam alone is not sufficient evidence to indicate that the USS Albert David was ever located in inland waters during the period of time the Veteran was stationed on this vessel. Additionally, the Board notes that the Veteran indicated that he also served on the USS Frederick and the USS Savannah while in service. Additional research shows neither of these ships were recorded as ever having served in Vietnamese waters. Therefore, the evidence does not indicate that the Veteran was exposed to any herbicides during service. The fact that the Veteran is not entitled to the regulatory presumption of service connection based on herbicide exposure does not preclude an evaluation as to whether he is entitled to service connection on a direct basis or entitled to presumptive service connection for a chronic disease. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). As noted above, the Veteran was not diagnosed with a heart disorder until 1992, approximately 15 years after separation from service. The record does not include any medical opinion suggesting his heart disorder arose during service, nor does the Veteran contend such. Service treatment records are entirely silent for any complaints, findings, or treatment for a heart disorder. None of the medical records after service provided a nexus between the Veteran's heart disorder and his active duty service. Therefore, the Veteran's claim for service connection for heart disorder must be denied on a direct basis, in addition to on a presumptive basis as a chronic condition pursuant to 38 C.F.R. § 3.309(a). After careful review of the medical and lay evidence of record and the pertinent law and regulations, the Board finds that there is no competent evidence that the Veteran was exposed to herbicides during his service. The presumption of service connection thereby does not attach. The Veteran does not contend, and the evidence does not show, that his heart disorder arose during service or within one year following discharge from service. Moreover, there is no competent evidence linking his heart disorder to service and no competent evidence establishing that the Veteran was actually exposed to herbicides during his service. His assertion of exposure is outweighed by the evidence discussed above, which does not establish exposure. As such, service connection for a heart disorder on a direct basis and as due to herbicide exposure is not warranted, and the claim must be denied. As for the claim for service connection for a heart disorder secondary to the Veteran's service-connected PTSD, that claim must also fail. The medical evidence of record shows that the Veteran has PTSD related to service. He has been treated for the condition on a regular basis for many years. He has also been treated since 1992 for heart disease. He maintains that he is not able to differentiate between panic attacks and stress associated with his PTSD and his symptoms associated with his heart disorder. The Veteran underwent VA examination in October 2011. A past medical history of CAD, status post seven vessel coronary artery bypass grafting in 2000, and aortic stenosis is noted in the record. He also is status post anterior myocardial infarction (MI), cardiac catheterization and balloon angioplasty in 1992. The examiner stated that the Veteran's CAD meets the medical definition of ischemic heart disease (IHD). He is treated with prescriptions for his heart disease. He does not have congestive heart failure. The examiner provided an opinion indicating that it is less likely as not, based on objective medical documentation that the Veteran's PTSD caused or permanently aggravated the Veteran's claimed CAD. The examiner stated that the Veteran had a complex medical history complicated by tobacco, smoking 1.5 to 2 packs of cigarettes per day. According to the examiner, it is at least as likely as not that the current severity of the claimed heart disorder is solely due to the natural progression of the condition. It is at least as likely as not that the current severity of the CAD is due to factors unrelated to PTSD, based on a lack of sufficient medical objective documentation to support and correlate the cardiac disease with present PTSD. Pursuant to the Board's April 2013 remand, the Veteran underwent an additional VA examination in June 2013. The Veteran was examined and the entire claims folder was reviewed. The examiner opined that it was less likely as not that the Veteran's CAD was caused or related to service. CAD is a disease of deposition of atherosclerotic plaques that narrow the coronary arteries and limit blood flow to the heart muscle. Military service and duties are not known contributors to the deposit of atherosclerotic plaques or CAD. The development of CAD is related to genetic risk factors as well as modifiable risk factors such as tobacco use, high cholesterol/fat diet, and lack of exercise. Tobacco use, especially high tobacco use (greater than 2 packs per day with the Veteran) is a widely known and accepted risk factor for early atherosclerotic disease. In the opinion of the examiner, it is at least as likely as not that the Veteran's CAD was caused, at least in part, by his tobacco use. Additionally, the examiner stated that there is nothing in the service records that suggests the Veteran had CAD during service and it is unlikely he had CAD during service since it was not diagnosed until 15 years after service discharge. Aortic stenosis, according to the examiner, also is less likely as not related to the Veteran's military service. Aortic stenosis is the narrowing of the valve that separates the left ventricle from its outflow tract. The condition has no known (by literature or conventional teaching) association with activities of or related to service. There was no evidence that the aortic stenosis was present during the Veteran's active service and it was not diagnosed until 30 years after active service. The examiner further opined that there is no association, by conventional teaching, between PTSD and the development of CAD. According to the examiner, there is some new literature that has been published in the last 5 to 10 years that may suggest a correlation between PTSD and other anxiety disorders with the incident of MI. However, the association is not a strong one, and is certainly not widely accepted by the medical community as a defined risk factor. Tobacco use, on the other hand, is a well documented and significant risk factor for the development of early atherosclerotic CAD. This risk is also dosage dependent and increased significantly with the increase of tobacco use. The Veteran was known to smoke 1.5 to 2 packs of cigarettes daily since the age of 17. This tobacco use, according to the examiner, contributed far more to the development of CAD, than did PTSD, if PTSD did at all. Since PTSD is not accepted in the medical community as a cause of PTSD and this Veteran has a much stronger and well-established risk factor for his CAD, the examiner's medical opinion is that it is less likely as not that the Veteran's CAD is caused by PTSD. The examiner stated that the symptoms of PTSD and anxiety attacks mimic symptoms of MI or cardiac angina (and CAD by direct correlation). While it is known that PTSD may mimic symptoms of CAD, it is not known to cause or accelerate the deposition of atherosclerotic plaque within the coronary arteries. This is noted in response to the symptoms of chest pain noted in the record from 2002 and repeated emergency department visits for chest pain that was ultimately attributed to PTSD symptoms. The examiner also indicated that there was no known or postulated association between PTSD and aortic stenosis. Therefore, it is less likely as not, according to the examiner, that the Veteran's aortic stenosis was caused by his PTSD. The examiner also opined that the same reasoning and rationale set forth for the lack of causation of heart disease by PTSD is the same reasoning that it is less likely than not that the Veteran's CAD and aortic stenosis were permanently worsened or aggravated beyond the natural progression of the disease by PTSD. Based on the evidence of record, service connection for a heart disorder, secondary to the Veteran's service-connected PTSD, is not warranted. As to Wallin element (1), the medical evidence of record demonstrates that the Veteran is currently diagnosed with CAD and aortic stenosis. With respect to Wallin element (2), it is undisputed that the Veteran is currently service connected for PTSD. Specifically, the Veteran was granted service connection for PTSD, effective March 2001. Turning to crucial Wallin element (3), October 2011 and June 2013 VA examinations addressed the issue of medical nexus. The October 2011 VA examination report indicated that it was unlikely that the Veteran's heart disorder was caused by his PTSD. Specifically, the examiner in the June 2013 VA examination addressed causation and aggravation. He also indicated that the Veteran's PTSD did not cause his heart disorder nor did it aggravate it. According to the examiner, he opined that the Veteran's heart disorder was more likely caused by his risk factor of tobacco abuse. He also opined that the Veteran's PTSD did not aggravate or make worse the Veteran's heart disease as PTSD did not cause atherosclerotic plaques to break off into the arteries. The examiner stated that the Veteran's PTSD symptoms mimicked symptoms of heart disease, but did not cause or aggravate the heart disease. Finally, the examiner indicated that PTSD and other anxiety producing disorders had been raised within the last 5 to 10 years as possible causes for heart disease; however, PTSD was not widely accepted in the medical community as a risk factor for the Veteran's heart disorder. Absent the Veteran's personal statements, there is no other evidence that his heart disorder is secondary to his service-connected PTSD. The Board notes that the United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). Although the Veteran is competent to describe symptoms related to his heart disorder if such could be identified, he is not competent to diagnose the cause of his heart disorder. CAD and aortic stenosis are not the type of disorders that can be diagnosed by unique and readily identifiable features. They do not involve a simple identification that a layperson is competent to make. Clinical testing by a VA examiner is necessary. Again, there is no evidence to support a finding that the Veteran's heart disorder is due to or aggravated by his service-connected PTSD. The Veteran's unsubstantiated statements regarding his claim that his heart disorder is secondary to his service-connected PTSD are found to lack competency. Therefore, since there are no finding of heart disease or herbicide exposure in service, and no findings relating the Veteran's heart disorder to his PTSD by way of causation or aggravation, service connection for a heart disorder on a direct or chronic disease basis, due to herbicide exposure, or in the alternative, secondary to the Veteran's service-connected PTSD, is not warranted. ORDER Service connection for a heart disorder, to include as a result of herbicide exposure, or secondary to service-connected PTSD, is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs