Citation Nr: 1509369	
Decision Date: 03/04/15    Archive Date: 03/17/15

DOCKET NO.  13-08 829	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Columbia, South Carolina


THE ISSUE

Entitlement to service connection for heart disease.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Harold A. Beach, Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from January 1968 to January 1971.  He had service in the Republic of Vietnam from June 1968 to June 1969.

This matter came to the Board of Veterans' Appeals (Board) on appeal from an June 2011 rating decision by the RO.  

In February 2014, the Veteran had a video conference with the Veterans Law Judge whose signature appears at the end of this decision.  

In September 2008, the RO denied the appellant's claim of entitlement to service connection for hypertension.  The Veteran was notified of that decision, as well as his appellate rights; however, a notice of disagreement was not received with which to initiate an appeal.  Therefore, that decision became final under the law and regulations then in effect.  38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. § 20.1103 (2008).  The Veteran has raised no contentions that he wishes to reopen that claim or otherwise revisit that issue.  Accordingly, it will not be discussed below.  


FINDING OF FACT

Heart disease, primarily diagnosed as atrial fibrillation, was first manifested many years after the Veteran's separation from the service, and the preponderance of the evidence is against a finding that it is in any way related thereto.  


CONCLUSION OF LAW

Heart disease, diagnoses primarily as atrial fibrillation, is not the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A (West 2014) ; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2014).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The VA's Duties to Notify and Assist

Prior to consideration of the merits of the appeal, the Board must determine whether the VA has met its statutory duty to notify and assist the appellant in the development of his claim of entitlement to service connection for heart disease.  

After the claim was received, the RO advised the Veteran by letter of the elements of service connection and informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim.  The duty to notify is satisfied.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. 473 (2006).

VA's duty to assist includes helping claimants to obtain service treatment records and other pertinent records, including VA and private medical records.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The claims file contains the Veteran's service treatment records, private medical records, and VA treatment records.  The duty to obtain relevant records is satisfied.  See 38 C.F.R. § 3.159(c).

The VA's duty to assist also includes providing a medical examination and/or obtaining a medical opinion when necessary to make a decision on the claim, as defined by law.  See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79 (2006).  Appropriate VA medical inquiry was accomplished and is factually informed, medically competent and responsive to the issue under consideration.  Monzingo v Shinseki, 26 Vet. App. 97 (2012); Barr v. Nicholson, 21 Vet. App. 303 (2007). 

During the Veteran's February 2014 video conference, the Veterans Law Judge explained the issues fully and suggested the submission of evidence that the claimant may have overlooked and that would be advantageous to his position.  See Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The Veterans Law Judge left the record open for 60 days, so that the Veteran could submit additional evidence to support his claim.  The hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2) (2014).  Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing.  See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C.A. § 7261(b)(2) (West 2014); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)).

The Applicable Law and Regulations

In this decision, the Board will discuss the relevant law which it is required to apply.  This includes statutes enacted by Congress and published m Title 38, United States Code ("38 USCA "), regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C FR ") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed Cir ") and the Court of Appeals for Veterans Claims as noted by citations to "Vet App ")

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions See 38 USCA § 7104(d , see also 38 C F R § 19 7 (implementing the cited statute); see also Vargas-Gonzalez v West, 12 Vet App 321, 328 (1999 , Gilbert v Derwinski, 1 Vet App 49, 56 57 1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision as well as to facilitate review of the decision by courts of competent appellate jurisdiction) The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.  

Service connection may be granted for disability or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110.  Generally, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service.  See Cuevas v. Principi, 3 Vet. App. 542 (1992). 

For certain disabilities, such as heart disease, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the Veteran's discharge from active duty.  38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

In addition, service connection may be presumed when the Secretary of the VA determines that they are the result of inservice exposure to herbicides, such as Agent Orange.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e).  Those disabilities include, but are not limited to, ischemic heart disease, provided that they are manifested to a degree of at least 10 percent during the regulatory period following the last exposure.  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6).  The term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of Ischemic heart disease.  38 C.F.R. § 3.309(e), Note 2.  

A presumption of service connection for a particular disability based on exposure to Agent Orange does not attach, unless specifically so determined by the Secretary of the VA.  See, e.g., 77 Fed. Reg. 47,924-47,925 (August 10, 2012).  However, the law does not preclude a veteran from establishing service connection with proof of direct causation.  See Brock v. Brown, 10 Vet. App. 155 (1997).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

Analysis

The Veteran alleges that his heart disorder was the result of his exposure to Agent Orange during his service in the Republic of Vietnam.  After carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim.  

The Veteran is competent to testify about what he experienced during and since the conclusion of his service.  For example, he is competent to report when he was first treated for a heart disorder.  See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994).  In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition.  King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional.  Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).

The Veteran's opinion, without more, is not probative, unless the particular disorders at issue are ones which are amenable to lay observation. 38 C.F.R. 
§ 3.159(a) . 

Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997).  In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  Caluza v. Brown, 7 Vet. App. 498   (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. 

In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998).  The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings.  The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993).  In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran.  Curry v. Brown, 7 Vet. App. 59 (1994).  

Although the Veteran argues that his current heart disorder is due to his exposure to Agent Orange, the question of whether a current disorder may be related to Agent Orange exposure involves a medical issue.  That question may not be competently addressed by lay evidence.  See Davidson, 581 F.3d at 1316  . Further, the probative medical evidence shows that the Veteran does not have an Agent Orange-related heart disorder.  His testimony of a relationship between his heart disorder and his service is not merely uncorroborated by the contemporaneous evidence, it is contradicted by more contemporaneous, probative, and accurate evidence of record.  Curry v. Brown, 7 Vet. App. 59 (1994) (Contemporaneous evidence has greater probative weight than a history reported by the Veteran.  ).  His lay assertions have been investigated by competent medical examination and found not supportable. Jandreau, 492 F.3d at 1376-77.  

By virtue of his service in the Republic of Vietnam, the Veteran is presumed to have been exposed to Agent Orange  38 C.F.R. § 3.307(a)(6)(iii).  

The evidence on consists of the Veteran's service treatment and personnel records, multiple records from G. L. B., M.D., reflecting Veteran's treatment from August 1997 to September 2010; records from L. E. K., M.D., reflecting Veteran's treatment from August 2010 to April 2012; the report of an October 2010 VA psychiatric examination; the report of an April 2011 VA heart examination; VA records reflecting Veteran's treatment from May 2011 to March 2013; and the report of a June 2011 VA protocol examination.  In addition to extensive clinical records, there are reports of multiple electrocardiograms and chest X-rays, as well as the reports of an echocardiogram, nuclear imaging, and cardiac catheterization by Dr. K. in August and September 2010.  

VA treatment records, dated in September 2012 and March 2013, and contained in the Veteran's electronic file (Virtual VA), show that he has a current diagnosis of chronic atrial fibrillation, status post cardioversion.  

Chronic atrial fibrillation was first manifested in August 2010 and confirmed by an electrocardiogram, during the appellant's treatment by L. E. K., M.D.  During the VA psychiatric examination in October 2010, the Veteran had an Axis III diagnosis of coronary artery disease.  However, the evidence does not establish the presence of that disease.  The salient question, then, is whether there is a nexus between the Veteran's exposure to Agent Orange and atrial fibrillation.  

Chronic atrial fibrillation is not a disease which has been recognized as being the result of Agent Orange exposure, and there is no evidence on file or in his electronic record which shows such a nexus.  In addition, there is no evidence that the Veteran has ischemic heart disease, a disease which has been presumptively linked to Agent Orange exposure.  During the April 2011 VA heart examination, the examiner specifically found that the appellant did not have ischemic heart disease.  The June 2011 VA protocol examination was also negative for any findings of ischemic heart disease.  

Because there is no competent evidence of chronic atrial fibrillation in service or during the first year after the Veteran's separation from service, and because there is no competent evidence of a nexus between the Veteran's atrial fibrillation and any event in service (including his exposure to Agent Orange), the Veteran does not meet the criteria for service connection.  Accordingly, service connection for a heart disease, diagnosed as atrial fibrillation, is not warranted, and the appeal is denied.

In arriving at this decision, the Board has considered the doctrine of reasonable doubt.  However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim.  In this case, the preponderance of the evidence is against the Veteran's claim.  Therefore, the doctrine of reasonable doubt is not applicable.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). 

ORDER

Entitlement to service connection for a heart disease, primarily diagnosed as atrial fibrillation, is denied.  



____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs