Citation Nr: 1636140 Decision Date: 09/15/16 Archive Date: 09/27/16 DOCKET NO. 13-19 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for erectile dysfunction, to include as secondary to service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD. 3. Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to service-connected PTSD. 4. Entitlement to service connection for microvascular disease, to include as secondary to service-connected PTSD. 5. Entitlement to service connection for a heart condition, to include as secondary to service-connected PTSD and as due to herbicide exposure. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Navy from July 1963 to December 1967, to include service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2016. A transcript of that hearing is of record. The issues of entitlement to service connection for GERD, erectile dysfunction, and hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's microvascular disease was not present during service, has not been continuously present since service, and the weight of the evidence fails to establish that the Veteran's microvascular disease is etiologically related to his active service, caused by a service-connected disability, or aggravated by a service-connected disability. 2. The Veteran is presumed to have been exposed to herbicides during his naval service. 3. A diagnosis for a heart condition has not been shown at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for microvascular disease have not been met. 38 U.S.C.A § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.309, 3.310 (2015). 2. The criteria for service connection for a heart condition have not been met. 38 U.S.C.A § 1110 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran testified before the Board in April 2016. Regarding his service connection claim a heart condition, the Veteran was provided a VA examination (the report of which has been associated with the claims file), which the Board finds to be adequate for rating purposes, as the examiner had a full and accurate knowledge of the Veteran's disability and contentions and grounded her opinion in the medical literature and evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of the examination conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). No VA examination was requested in relation to the issue of service connection for microvascular disease. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board finds no reasonable possibility that a VA examination would aid in substantiating the service connection claim for microvascular disease. See 38 U.S.C. § 5103A(a). The weight of evidence is against a finding that microvascular disease had its onset during active service or within one year of separation from active service or competent evidence even suggesting microvascular disease may be associated with service or a service-connected disability. Essentially, elements (2) and (3) are absent. Therefore, as discussed in detail below, VA has no duty to provide a VA examination or obtain an opinion in this case. Moreover, the U.S. Court of Appeals for the Federal Circuit has recognized that there is not a duty to provide an examination in every case. See Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Rather, the Secretary's obligation under 38 U.S.C. § 5103A(d) to provide the Veteran with a medical examination or to obtain a medical opinion is not triggered unless there is 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. See McLendon, 20 Vet. App. at 81. This standard has not been met in this case, and there is sufficient competent medical evidence of record to make a decision on the claims. Essentially, beyond the Veteran's statements, no evidence is of record to suggest that the Veteran's microvascular disease either began during or was otherwise caused by his active service or is due to or aggravated by a service-connected disability. These statements alone are insufficient to trigger VA's duty to provide an examination, as they are undermined by his statements at the time of separation. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Service connection may also be established with certain chronic diseases based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service connected disability; and (3) medical nexus evidence establishing a connection between the service connected disability and the current disability. Wallin v. West, 11 Vet. App. 509 (1998). Microvascular Disease In his February 2010 service connection claim, the Veteran asserted that his microvascular disease is related to his service-connected PTSD. The Veteran's STRs do not show any complaints, symptoms, treatment, diagnosis, or surgery for a microvascular disease. The record contains no evidence of any microvascular disease in service or after his separation from service until decades later. There is also no competent medical opinion of record which even suggests that the Veteran's currently diagnosed microvascular disease even might be related to his service or a service-connected disability. Consideration has been given to the Veteran's allegation that his microvascular disease is due to his PTSD. He is clearly competent to report symptoms of chest pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, while the Veteran may describe microvascular disease symptoms, he lacks the medical training or qualification either to diagnose microvascular disease or to relate it to any in-service injury or a service-connected disability. Id. As such, the criteria for service connection for microvascular disease have not been met, and the Veteran's claim is denied. Heart Condition In his December 2009 claim, the Veteran contends that he is entitled to service connection for a heart condition due to herbicide exposure because he wears a heart monitor. His claim was denied by a February 2011 rating decision. Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, including prostate cancer, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. §§ 3.307, 3.309. The Veteran's service records show that he was served aboard the U.S.S. Waddell on an inland waterway in Vietnam. As such, herbicide exposure is conceded. The Veteran's STRs do not contain any complaints of symptoms in service which appear to have been associated with a heart condition. After his separation from service, in April 2005, the Veteran had a normal exercise test, an EKG that showed sinus rhythm and no acute ST-T wave changes, normal coagulation studies, normal cardiac enzymes, and a normal chest x-ray. In January 2011, the Veteran was afforded a VA examination for his heart condition. The examination consisted of a review of the Veteran's claims file, an interview of the Veteran, and a physical examination of the Veteran. The examiner reported that the Veteran was not diagnosed with coronary artery disease or ischemic heart disease during treatment in April 2005. Furthermore, the examiner noted that while the Veteran had a 24-hour Holter monitor in May 2009, there was no evidence of coronary artery disease. The examiner also noted that the Veteran had a normal treadmill test. The examiner found no chronic heart disability to be present. VA obtained a medical examination in an effort to support the Veteran in establishing his claim. The Board finds great probative value in the VA examiner's findings as it was based on a physical examination and a review of the Veteran's in-service and post-service medical records. This negative opinion is sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position, including his assertion that a heart condition was due to herbicide exposure. Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). Consideration has been given to the Veteran's allegation that a heart condition was due to his active service and exposure to herbicides. However, to the extent that the Veteran is considered competent to report symptoms of a heart condition, he has not actually reported any current symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Moreover, he lacks the medical training or qualification either to diagnose a heart condition or to relate it to his active service. Id. Based on the Veteran's complaints, a medical examination was provided, but as noted, there was no basis for a diagnosis to be rendered. The Board finds that evidence of a present disability has not been presented in the case of the Veteran's reported heart condition; and, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement 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." McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). However, here, no residuals of a chronic disability have been identified during the course of the Veteran's appeal. As such, the criteria for service connection for a heart condition have not been met, and the Veteran's claim is denied. ORDER Service connection for microvascular disease is denied. Service connection for a heart condition is denied. REMAND Regarding his service connection claim for GERD, the Veteran asserted that his GERD first manifested during his active service. He also asserted his GERD was secondary to his PTSD. At his Board hearing, the Veteran testified that he had symptoms of GERD during his active service and took over-the-counter medications, but that he never went to sick bay or mentioned it at his separation examination. His wife testified that the Veteran had GERD symptoms after his separation from service, explaining that he would often get heart burn and was unable to eat spicy food. Regarding his service connection claims for erectile dysfunction and hypertension, the Veteran testified that the October 2009 VA examiner told him that PTSD was related to both erectile dysfunction and hypertension; however, the VA examiner did not report these findings in the VA examination report. In addition, in April 2016, the Veteran's representative submitted a medical article that relates PTSD, high blood pressure, and heart disease. VA is obliged to provide an examination when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service; and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). As such, a new VA examination is necessary to adjudicate the service connection claims for GERD, erectile dysfunction, and hypertension. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his GERD. The claims file should be provided to the examiner. The examiner should offer the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's GERD either began during or was otherwise caused by his naval service? Why or why not? The examiner should address the lay statements of the Veteran and his wife (during the Board hearing in April 2016) concerning his symptomology and onset. b) Is it at least as likely as not (50 percent or greater) that the Veteran's GERD was either caused or aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability or from medications prescribed to treat a service connected disability? Why or why not? If aggravation is found, the examiner should attempt to identify a baseline level of the disability prior to the aggravation occurring. Note: "At least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 2. Schedule the Veteran for a VA examination to assist in determining the nature and etiology of his erectile dysfunction and hypertension. The claims file should be provided to the examiner. The examiner should offer the following opinions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's erectile dysfunction and/or hypertension either began during or was otherwise caused by his naval service? Why or why not? b) Is it at least as likely as not (50 percent or greater) that the Veteran's erectile dysfunction and/or hypertension was either caused or aggravated (i.e. permanently made worse beyond the natural progression of the disability) by a service connected disability or from medications for a service connected disability? Why or why not? The examiner should address the medical article, "Ask the Mayo Clinic: PTSD, high blood pressure and heart disease can be related." If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112. ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs