Citation Nr: 1605087 Decision Date: 02/10/16 Archive Date: 02/18/16 DOCKET NO. 13-00 544 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart condition, including as due to herbicide exposure or as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to October 1969. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 decision by the RO in St. Petersburg, Florida that denied service connection for a heart condition. A personal hearing was held in November 2015 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. Additional pertinent evidence was received from the Veteran in December 2015. The Board finds that this evidence need not be referred to the Agency of Original Jurisdiction (AOJ) for initial review of this evidence, as the benefit sought by the Veteran may be fully granted in this decision. See 38 C.F.R. § 20.1304. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran had active service in Vietnam during the Vietnam era. 2. Ischemic heart disease is presumed to be related to exposure to herbicide agents during his active military service. 3. Current coronary disease status post pacemaker placement is proximately due to service-connected diabetes mellitus type II. CONCLUSIONS OF LAW 1. Ischemic heart disease is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2015). 2. Current coronary disease status post pacemaker placement is secondary to service-connected diabetes mellitus type II. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Notice and Assistance VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In this case, the Board finds that the RO has substantially satisfied the duties to notify and assist. To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant in proceeding with this issue given the fully favorable nature of the Board's decision. At this time, the Board also notes that it is cognizant of the ruling in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. § 3.103(c)(2) requires that the RO official or VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. However, as discussed above, to the extent possible, VA has obtained the relevant evidence and information needed to adjudicate this appeal. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the November 2015 Board hearing. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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 (West 2014); 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. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. Other diseases initially diagnosed after service also may be service connected if the evidence, including that pertinent to service, shows the diseases were incurred in service. 38 C.F.R. § 3.303(d). Certain diseases like endocarditis (including all forms of valvular heart disease) and cardiovascular-renal disease (including hypertension) are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (meaning to at least 10-percent disabling) within one year of separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that only conditions listed as chronic diseases in § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b). In order to establish service connection for the claimed disorder, there must be (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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2014); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Service connection may also be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a); see Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). An increase in severity of a non-service-connected disorder that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the non-service-connected condition, will be service connected. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). Supporting medical nexus evidence generally is needed to associate a claimed condition with a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). A review of the evidence reflects that the Veteran has been diagnosed with a current heart condition, to include coronary artery disease. Consequently, the determinative issue is whether or not this disability is attributable to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between the disability and an injury or a disease incurred in service."). If a Veteran was exposed to certain herbicide agents during active military, naval, or air service, certain specified diseases, including ischemic heart disease, shall be presumptively service connected, if the requirements of 38 C.F.R. § 3.307(a) are met. 38 C.F.R. § 3.309(e) (2015). Governing regulation provides that 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. Diseases associated with exposure to certain herbicide agents used in support of military operations in the Republic of Vietnam during the Vietnam era will be presumed to have been incurred in service, even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. §§ 3.307(a)(6). This presumption requires exposure to an herbicide agent and manifestation of the disease to a degree of 10 percent or more within the time period specified for each disease. 38 C.F.R. § 3.307(a)(6)(ii). Furthermore, even if a Veteran does not have a disease listed at 38 C.F.R. § 3.309(e), it will be presumed that he was exposed to herbicides if he served in Vietnam between January 9, 1962 and May 7, 1975 (i.e., during the Vietnam era), unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). In this case, the Veteran served in Vietnam from November 1968 to August 1969, and is therefore presumed to have been exposed to herbicides. Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran contends that that he has a heart condition, to include ischemic heart disease, due to exposure to Agent Orange during his service in Vietnam. Alternatively, he contends that his current heart condition is secondary to service-connected diabetes mellitus. Here, the evidence shows that during the pendency of the appeal, the Veteran has a current diagnosis of ischemic heart disease, an enumerated disease associated with herbicide exposure under 38 C.F.R. § 3.309(e). See December 2015 private medical record by Dr. D., and private medical records from Orlando Heart Center diagnosing coronary artery disease, ischemic cardiomyopathy, and aortic valve disorders. Service treatment records are negative for pertinent abnormalities, and post-service medical records are negative for heart disease until 2007. Private medical records from Orlando Regional Healthcare System reflect that the Veteran was hospitalized from March to April 2007, and on discharge was diagnosed with status post permanent pacemaker placement secondary to complete heart block, congestive heart failure, diabetes mellitus type II, and hypertension, among other conditions. His treating cardiologists included Dr. R.D. The Veteran's established service-connected disabilities include type II diabetes mellitus, and renal insufficiency with hypertensive disease associated with type II diabetes mellitus, as well as other disabilities. On VA examination in May 2009, the examiner diagnosed hypertension. The examiner indicated that the Veteran did not have coronary artery disease, citing relevant medical records. The examiner diagnosed complete heart block, and opined that this condition was not secondary to his diabetes mellitus type II. On VA ischemic heart disease examination in November 2010, the examiner indicated that the Veteran did not have ischemic heart disease, but did have diagnoses of hypertension, a cardiac pacemaker, and diabetes mellitus. The examiner indicated that the Veteran's implanted cardiac pacemaker was not as likely as not due to ischemic heart disease. In a March 2015 Ischemic Heart Disease (IHD) Disability Benefits Questionnaire, a private physician, R.D., MD, indicated that the Veteran had ischemic heart disease. He diagnosed ischemic cardiomyopathy, aortic valve disorders, coronary artery disease, chronic obstructive pulmonary disease, morbid obesity, and hypertension. He indicated that coronary artery disease was diagnosed in August 2012. At his November 2015 Board hearing, the Veteran testified that he was first diagnosed with a heart condition in 2007 by Dr. D., who implanted his pacemaker. In a December 2015 medical opinion, a private physician, R.D., MD, a cardiologist, diagnosed "pacemaker" and coronary disease, and opined that these conditions were most likely caused by or as a result of diabetes mellitus. Dr. D. indicated that the Veteran's diabetes had caused long-term damage and dysfunction of the "myocardial" and conduction disease which has been the reason for the pacemaker. The Veteran's medical records demonstrate that he has been diagnosed with coronary artery disease, i.e., ischemic heart disease. The Veteran is presumed to have been exposed to herbicides during his in-country service in Vietnam, and his ischemic heart disease is presumed to be associated with his in-service herbicide exposure. See 38 C.F.R. § 3.309(e). There is no clear and convincing evidence to rebut this presumption. As a result, the Board finds that the evidence supports a grant of service connection for ischemic heart disease on a presumptive basis as a result of herbicide exposure. Service connection is also warranted for coronary disease status post pacemaker placement as secondary to service-connected diabetes mellitus type II, based on the competent, credible and probative December 2015 private medical opinion by Dr. D. 38 C.F.R. § 3.310(a). ORDER Service connection for ischemic heart disease and coronary disease status post pacemaker placement is granted. ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs