Citation Nr: 1341429 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 10-22 342 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a heart disability. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. In that decision, the RO denied entitlement to service connection for ischemic heart disease. The Veteran testified before the undersigned at a May 2011 hearing at the RO. A transcript of the hearing has been associated with his claims folder. This claim was remanded for further development in November 2012; as explained further below, the Board finds there has been substantial compliance with the remand. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam. 2. A heart disability, to include ischemic heart disease, hypertension and atrial fibrillation, did not have its clinical onset in service or within the first post service year and it is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1110, 1113(b), 1116, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA In a March 2010 letter, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(b) (2013). The AOJ notified the Veteran of information and evidence necessary to substantiate his claims for service connection. He was notified of the information and evidence that VA would seek to provide and the information and evidence that he was expected to provide. He was also informed of the process by which initial disability ratings and effective dates are assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The duty to notify has been met. The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim. 38 C.F.R. § 3.159 (2013). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). VA records have been associated with the claims file; the claim was remanded in part for updated VA records and the Board finds these records are associated with the file. In cases where VA is unable to obtain records, or if after continued efforts to obtain Federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, VA is to provide the claimant oral or written notice of that fact. 38 C.F.R. § 3.159(e) (2013). Notice must contain the identity of the records VA was unable to obtain; an explanation of the efforts VA made to obtain the records; a description of any further action VA will take regarding the claim including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and notice that the claimant is ultimately responsible for providing the evidence. 38 C.F.R. § 3.159(e)(1)(i)-(iv) (2013). Here, the Board finds that the Veteran was appropriately notified that VA was unable to locate his service treatment records in March 2009 during the adjudication for his claim of service connection for rectal cancer. Further, in the March 2010 letter, he was notified that it was ultimately his responsibility to make sure VA receives all records. Finally, his attorney requested a full copy of his file in November 2009; his attorney was aware of what was available in the file. As detailed in the March 2009 VA memorandum regarding a formal finding of unavailability and in the March 2009 letter, the AOJ requested service treatment records from both the National Personnel Records Center and VA Records Management Center and received a negative response. In cases where service records are missing or presumed destroyed, in addition to the Board's heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule, the Board also has a heightened duty to assist a veteran with the development of evidence in support of his claim. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006). The Veteran was afforded a VA examination in January 2013 and an addendum was also completed later that month. When considered together, the VA examination report and addendum are fully adequate. The examiner reviewed the file, interviewed the Veteran and provided a relevant opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (In determining the probative weight, a medical opinion will be considered more probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions). The Board therefore finds that there has been substantial compliance with the last remand. The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). Here, the transcript of the May 2011 Board hearing shows that the Veteran gave information regarding his claim and responded to questions aimed at determining whether further information was needed to substantiate the claim. The Veteran and his attorney (who was present at the hearing) have not raised complaints regarding the conduct of the hearing. The Board finds the duties to notify and to assist have been met. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110; 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Cardiovascular-renal disease, including hypertension, is listed in § 3.309, however, the regulation explains that this term applies to combination involvement of the type of arteriosclerosis, nephritis, and organic heart disease only. Since hypertension is an early symptom long preceding the development of those diseases in their more obvious forms, a disabling hypertension within the one-year period will be given the same benefit of service connection as any of the chronic diseases listed. However, the Veteran is not alleging, and the evidence does not show, any disabling hypertension within one year from service. As a result, this presumption is not for application. See 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013). The specific statute pertaining to claimed exposure to herbicides is 38 U.S.C.A. § 1116 (West Supp. 2013). For a veteran who has service in Vietnam, there is a presumption of exposure to herbicide agents. 38 C.F.R. § 3.307(a)(6)(iii) (2013). For example, VA currently recognizes that ischemic heart disease is associated with exposure to herbicides. See 38 C.F.R. § 3.309(e) (2013). "Ischemic heart disease" includes (but is not limited to) acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. Id. The Agent Orange Act of 1991 (in part) directed the Secretary of VA to enter into an agreement with the National Academy of Sciences (NAS) to review and summarize the scientific evidence concerning the association between exposure to herbicides used in support of military operations in the Republic of Vietnam during the Vietnam Era and each disease suspected to be associated with such exposure. See 38 U.S.C.A. § 1116 (b) and (c). The Secretary's determination must be based on consideration of National Academy of Science (NAS) reports and all other sound medical and scientific information and analysis available to the Secretary. Id. As a result of this ongoing research, certain diseases have been found to be associated with exposure to herbicide agents and will be presumed by VA to have been incurred in service even though there is no evidence of such disease during such period of service. 38 C.F.R. §§ 3.307(a), 3.309(e). In a Notice published in the Federal Register in August 2012, the Secretary determined that hypertension did not warrant a presumption of service connection based on exposure to herbicides based on an updated report of the NAS. See 38 U.S.C.A. § 1116(b) and (c); 77 Fed. Reg. 47924, 47926-7 (August 10, 2012). Despite the foregoing presumption provisions, the Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Although the Combee decision pertained to radiation claims, the same rationale applies to claims based on herbicide exposure. See also, McCartt, 12 Vet. App. 164, 167 (1999) (providing that the provisions set forth in Combee are equally applicable in cases involving claimed Agent Orange exposure). In adjudicating this claim, the Board must assess the competence and credibility of the Veteran and probative value of the evidence of record in its whole. See Washington v. Nicholson, 19 Vet. App. 362 (2005), 38 C.F.R. § 3.159(a)(2) (2013) (Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). In determining whether documents submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza, 7 Vet. App. 498. The record establishes a current diagnosis of atrial fibrillation and hypertension, but not ischemic heart disease (See August 2009 VA cardiology record and January 2013 VA examination report). Further, there is no complaint of hypertension or atrial fibrillation in service but the Veteran was exposed to herbicide via his service in Vietnam. There is no nexus between the current heart disabilities and service. Shedden, 381 F.3d at 1167. As noted, service treatment records are not available, but in any case the Veteran does not state that he had symptoms of atrial fibrillation or hypertension in service. He also does not claim he had ischemic heart disease in service, but instead asserted it developed after service and is related to herbicide exposure. (Transcript, pp 11-12.) The Veteran did not file a claim of service connection for ischemic heart disease in 2008 when he filed his claim for rectal cancer. At that time, he stated that he served in Vietnam from March 1967 to August 1968. He stated that he did not have a separation examination. July and August 2009 VA records reflect urgent care treatment for chest pain. The Veteran's medical history was recorded and testing was performed. The assessment was new onset atrial fibrillation in a 61-year-old patient with risk factors. Another July 2009 record noted the chest pain and the physician doubted it was ischemia as the initial electrocardiogram and enzymes were negative. In August, at a VA cardiology appointment, the Veteran reported that 10-12 years ago he had occasional symptoms of palpitations. He was never diagnosed with heart problems, but told to lose weight, which he did. He then experienced no palpitations until 2009. The assessment was new onset, symptomatic, atrial fibrillation. His one risk factor was hypertension, controlled on medication. In January 2010, the Veteran filed his claim of service connection for ischemic heart disease. He was afforded a VA examination in March 2010. The examiner concluded that there was no diagnosis of ischemic heart disease, but did not discuss the etiology of the paroxysmal atrial fibrillation. Meanwhile, an October 2010 VA record shows the Veteran's physician did not believe the Veteran to have coronary artery disease or that the present symptoms reflected coronary artery disease, but recommended an echocardiogram and diagnostic testing as a precaution. A February 2011 VA stress echocardiogram showed no ischemic changes. In January 2013, the Veteran received a new VA examination for heart disabilities. The Veteran reported an initial diagnosis of hypertension in about 1990. He also had atrial fibrillation, which was diagnosed in about 2010. Neither of these problems qualified within the generally accepted medical definition of ischemic heart disease. Diagnostic testing was normal. The examiner stated that the atrial fibrillation and hypertension were less than likely than not the result of his military service because although he was exposed to Agent Orange in Vietnam, his cardiac conditions did not meet the criteria of ischemic heart disease. In an addendum, the examiner clarified that the Veteran's hypertension and atrial fibrillation were less likely than not a result of military service because he was not diagnosed while in service and there was no current diagnosis of coronary artery disease. The Board finds that the Veteran is not competent to state that he has ischemic heart disease because that requires expertise and the interpretation of diagnostic testing. However, he is competent to report his heart-related symptoms and that he has been consistent in his report. 38 C.F.R. § 3.159(a)(2); Caluza, 7 Vet. App. 498. He did not report any symptoms in service. The Board assigns high probative weight to the January 2013 VA examination report an addendum because the examiner reviewed the file, examined and interviewed the Veteran and provided an opinion that addresses the lack of a diagnosis for ischemic heart disease and explains that the etiologies of the hypertension and atrial fibrillation are not related to military service. Further, the most recent research by VA supports this opinion. 77 Fed. Reg. 47924, 47926-7. The Board finds service connection is not warranted here. The presumption does not apply under 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e) because the Veteran does not have a disability that qualifies for that herbicide presumption. The elements for direct service connection are not shown. A preponderance of the evidence is against the claim. The reasonable doubt doctrine is not for application. See, 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). ORDER Service connection for a heart disability is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs