Citation Nr: 1342689 Decision Date: 12/24/13 Archive Date: 12/31/13 DOCKET NO. 13-06 179 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for coronary artery disease. ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran's notice of disagreement was received in April 2011. A statement of the case was issued in February 2013, and a substantive appeal was received in February 2013. FINDINGS OF FACT 1. The Veteran did not have active duty service in Vietnam after January 9, 1962. 2. The Veteran's coronary artery disease is not causally related to his active duty service. CONCLUSION OF LAW The Veteran's coronary artery disease was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1131, 1116, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Duty to Notify The VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought. In a letter sent in June 2010, the claimant was informed of the information and evidence necessary to warrant entitlement to service connection. He was also advised of the types of evidence VA would assist him in obtaining and his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The letter also notified the claimant of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim and is not prejudiced by any technical notice deficiency in the course of his appeal. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). These facts notwithstanding, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Duty to Assist Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. All available pertinent records, in-service and VA, have been obtained. A VA examination is not necessary because there is no credible evidence of record suggesting that a heart disability was incurred or aggravated in service, or that the Veteran was exposed to herbicides during service. See 38 C.F.R. § 3.159(c)(4), McLendon v. Nicholson, 20 Vet. App. 79 (2006). In January 2011, the RO found that the information required to corroborate the Veteran's service in the Republic of Vietnam or exposure to Agent Orange during service was insufficient to send a verification request to the Joint Services Records Research Center (JSRRC) or the National Archives and Records Administration (NARA). For reasons hereinafter explained, the Board finds the Veteran's assertions regarding service in Vietnam after January 9, 1962, not credible. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to adjudicate the claim and no further action is necessary. No additional pertinent evidence has been identified by the Veteran as relevant to the claim. Analysis The Veteran contends he is entitled to service connection for coronary artery disease because he was exposed to herbicides in Vietnam. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from a disability resulting from an injury or disease that was incurred coincident with service in the Armed Forces. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Generally, service connection requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). However, applicable regulations set forth presumptions for certain disabilities. For purposes of this case, VA law and regulations provide that if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though 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 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). Diseases associated with exposure to herbicides include, among others, ischemic heart disease (including, but 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). 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The record clearly demonstrates the presence of coronary artery disease. VA treatment records document treatment for coronary artery disease. A current disability is therefore established. The next issue to consider is whether the Veteran incurred or aggravated his disability in service. The Veteran primarily contends he is entitled to a presumption of exposure to herbicides for service in the Republic of Vietnam. In this regard, a copy of an April 1961 written order and a photocopy of the Veteran's U.S. passport confirm that the Veteran entered Vietnam in April 1961. However, the evidence of record does not establish that the Veteran served in Vietnam between January 9, 1962 and May 7, 1975. These are the dates which must be looked to for purposes of applying the presumption of service connection of certain disabilities, including ischemic heart disease, for Vietnam veterans. To have served in Vietnam is not by itself sufficient to apply the presumption. A veteran must have at least set foot in Vietnam during this time period. The Veteran repeatedly asserted that he served in Vietnam, but did not identify any evidence that indicated he had been in Vietnam after January 9, 1962. In his substantive appeal, the Veteran identified passport entries that documented travel in Southeast Asia as late as 1962, but significantly did not actually assert that he had been in Vietnam after January 9, 1962. Neither the photocopies of the Veteran's passport pages nor the Veteran's personnel records document the Veteran entering Vietnam after January 9, 1962. The Veteran also submitted a service personnel document that indicates he was eligible for the Armed Forces Expeditionary Medal (Vietnam). He asserted that he exchanged this medal for the Vietnam Service Medal. However, the Veteran's receipt of these medals does not constitute conclusive evidence of service in Vietnam for presumptive herbicide exposure purposes. Presumptive service connection on the basis of exposure to herbicides is not warranted in this case because the preponderance of the evidence is against a finding that the Veteran served in Vietnam after January 9, 1962. 38 C.F.R. § 3.307(a)(6)(iii). Furthermore, the evidence of record does not indicate that the Veteran was exposed to herbicides in any other manner during service. However, the Board will still consider whether the Veteran is entitled to direct service connection for coronary artery disease. The Veteran's July 1959 enlistment examination report and a January 1961 examination report indicate that the Veteran's heart was evaluated as normal. His STRs are silent for complaints, treatment or diagnoses related to his heart. The Veteran's heart was also evaluated as normal in his July 1963 separation examination report. VA treatment records noted the Veteran was first diagnosed with coronary artery disease after a 2008 stress test. The Veteran also noted he began receiving treatment for coronary artery disease in 2008. The Board does not dispute that the Veteran currently has coronary artery disease. The Board, however, finds that a preponderance of the probative evidence in this case establishes that the disability was not incurred or aggravated in service. There is no evidence of an in-service disease or injury related to the Veteran's current coronary artery disease. The Court has indicated that normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claims. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991). The medical evidence of record fails to relate any currently existing claimed disability to the Veteran's active service. Therefore, the Board finds that the competent, credible evidence in this case weighs against a finding that the Veteran incurred or aggravated coronary artery disease in service. The Board acknowledges the Veteran's statements attributing his coronary artery disease to service, but the evidence of record does not demonstrate that the Veteran has the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Therefore, the Veteran is not competent to provide an opinion on the etiology of his coronary artery disease. As a preponderance of the evidence of record is against the Veteran's claim of entitlement to service connection for coronary artery disease, the claim is denied. ORDER Entitlement to service connection for coronary artery disease is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs