Citation Nr: 1509321 Decision Date: 03/04/15 Archive Date: 03/17/15 DOCKET NO. 10-29 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for ischemic heart disease (IHD), including as due to exposure to Agent Orange. 2. Entitlement to service connection for a cerebral vascular accident (CVA), including as due to exposure to Agent Orange and secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1965 to September 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The record before the Board consists of the Veteran's paper claims file and electronic records within Virtual VA and the Veterans Benefits Management System. The issue of entitlement to service connection for a cerebral vascular accident is addressed in the REMAND that follows the ORDER section of this decision. FINDING OF FACT Ischemic heart disease has not been present at any time during the pendency of this claim. CONCLUSION OF LAW Ischemic heart disease was not incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2014), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided all required notice in a March 2010 letter, prior to the May 2010 rating decision on appeal. The record also reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. The Veteran was afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. Neither the Veteran nor his representative has identified any outstanding, existing evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. The Board has also considered whether a VA examination or medical opinion is required in this case. VA must provide a medical examination or obtain medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. Although the Veteran does have confirmed service in the Republic of Vietnam, and as such, exposure to Agent Orange may be conceded, his outpatient treatment records indicate he does not have IHD. In addition, there is no competent evidence suggesting the presence of IHC. Therefore, the medical evidence of record is sufficient to decide the claim, and VA is not obliged to provide an examination or obtain an opinion in response to this claim. Accordingly, the Board will address the merits of the Veteran's claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. 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). If a veteran was exposed to an herbicide agent during active service and manifests ischemic heart disease to a compensable degree any time after such service, the ischemic heart disease will be service connected 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 C.F.R. §§ 3.307(a)(6), 3.309(e). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Initially, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran asserts that service connection is warranted for IHD as a result of his exposure to Agent Orange in the Republic of Vietnam. At the outset, the Board notes the Veteran's DD-214 confirms the Veteran's service in the Republic of Vietnam, and as such, his exposure to the herbicide Agent Orange is conceded. In addition, IHD is subject to presumptive service connection on the basis of such exposure. The central issue in this case is whether there is competent evidence showing the Veteran has a current diagnosis of IHD. A review of the Veteran's private treatment records reveals the Veteran underwent an exercise stress test to assess for cardiac ischemia in March 2002. The Veteran was able to exercise for 7 minutes at that time, and achieved a metabolic equivalent (METS) score of 8.5. That same day, the Veteran also underwent a cardiac perfusion study, which revealed an ejection fraction of 54 percent. The clinician performing these tests specifically indicated the Veteran had no "symptoms or signs of ischemia." Prior to submitting his claim, the Veteran underwent another series of cardiac tests at the Milwaukee VA Medical Center (VAMC) in November 2008. He again underwent cardiac perfusion testing, which this time revealed an ejection fraction of 63 percent, indicating an improved blood flow from the heart. Additionally, the Veteran's left ventricle was found to be normally sized. As a result of other comorbidities that prevented him from performing an exercise treadmill test, the Veteran underwent a Persantine pharmacological stress test. In sum, the examiner found no evidence of coronary artery disease, congestive heart failure or myocardial infarction. Further, the examiner stated the stress test was entirely normal. VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). Accordingly, the Board has carefully considered the Veteran's contentions that he has IHD related to his exposure to Agent Orange. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has accepted the Veteran's account as competent. However, a layperson is not considered capable of opining, however sincerely, in regard to diagnosis of a disability. Routen v. Brown, 10 Vet. App. 183, 187 (1997), aff'd sub nom Routen v. West, 142 F3d 1434 (Fed. Cir. 1998), cert denied, 119 S. Ct. 404 (1998). Rather, it is the province of trained health care professionals to enter conclusions that require medical expertise, such as opinions as to diagnosis and causation. Jones v. Brown, 7 Vet. App. 134, 137 (1994). For example, a veteran is competent to state that he experiences chest pain or other symptoms that are routinely observable, but he is not competent to state that the chest pain is due to IHD. As discussed above, the competent medical evidence, which includes two complete cardiac tests, indicates the Veteran does not have ischemic heart disease. Since there is no competent evidence of IHD during the period of the claim, the claim must be denied. ORDER Service connection for ischemic heart disease is denied. REMAND The Veteran filed a claim for service connection for residuals of a stroke in April 2009. He has asserted in the alternative that this condition was either caused by Agent Orange exposure or his service-connected PTSD. A review of his outpatient treatment records from the Milwaukee VAMC shows the Veteran suffered a stroke in January 2009. This was subsequently confirmed when magnetic resonance imaging (MRI) in April 2009 revealed multiple white matter ischemic lesions. As a result of his stroke, the Veteran has residual right side weakness. Therefore, the central questions in this case are whether the Veteran's stroke was caused by exposure to Agent Orange or was caused or permanently worsened by his service-connected PTSD. At the outset, it must be noted that cerebral vascular accidents (CVAs or strokes) are not subject to presumptive service connection on the basis of Agent Orange exposure. The U.S. Court of Appeals for the Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during the service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). To date, the RO has not requested a medical opinion addressing whether the Veteran's CVA was caused by Agent Orange exposure. As noted above, VA is obliged to provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon, 20 Vet. App. at 83. Since the evidence presently indicates the Veteran suffered a CVA, was exposed to Agent Orange, and that the CVA may be related to such exposure, the Board has determined a new VA examination with medical opinion is warranted. In addition, the Board notes the Veteran underwent a VA examination in May 2009. At that time, the examiner diagnosed residual right hemiparesis resulting from a left cerebral hemispheric CVA. The examiner opined this disability is less likely than not due to his service-connected PTSD, and more likely due to paroxysmal atrial fibrillation related to his past history of hypertension, hyperlipidemia and smoking. However, the examiner failed to provide any rationale indicating why this was his opinion. By contrast, the Veteran provided a statement from his primary care physician at the Milwaukee VAMC, who found the Veteran's CVA was as least as likely as not related to his diagnosis of PTSD. Unfortunately, this physician also failed to provide even a scant rationale to support this conclusion. A medical report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the Board finds a VA examination by a physician with sufficient expertise to determine the nature and etiology of the Veteran's CVA is warranted. Moreover, since a remand of this claim is required, development to obtain any outstanding records pertinent to the claim should be completed. Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include any more recent treatment records related to the claimed disability. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Thereafter, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise, who has not provided a prior opinion in this case, to determine the nature and etiology of his CVA. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Then, the examiner should state an opinion as to whether there is a 50 percent or better probability that the Veteran's CVA: a) originated during his period of active service or is otherwise etiologically related to his active service, to include his exposure to Agent Orange; b) was caused by his service-connected PTSD; or c) was permanently worsened by his service-connected PTSD. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any requested opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs