Citation Nr: 1640370	
Decision Date: 10/12/16    Archive Date: 10/27/16

DOCKET NO.  11-27 526	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for ischemic heart disease, claimed as due to herbicide exposure or secondary to service-connected disability.  

2.  Entitlement to service connection for hypertension, to include as secondary to service-connected disability.

3.  Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) with polysubstance dependence.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Davitian, Counsel


INTRODUCTION

The Veteran served on active duty from December 1966 to November 1968, to include service in Vietnam from December 1967 to November 1968.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  The rating decision denied service connection for ischemic heart disease and hypertension, and denied an evaluation in excess of 50 percent for PTSD.  A September 2015 rating decision assigned a 70 percent evaluation for PTSD with polysubstance dependence, effective the date of receipt of his claim.  

The issues of entitlement to service connection for hypertension and an increased evaluation for PTSD with polysubstance dependence are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

1.  The competent medical evidence, and competent and credible lay evidence, of record does not demonstrate that the Veteran has ischemic heart disease.  


CONCLUSION OF LAW

Ischemic heart disease was not incurred in or aggravated by active service and may not be presumed to have been so incurred or aggravated, and is not proximately due to, the result of, or aggravated by, service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310(a) (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claim herein, VA met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

In general, a veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Secondary service connection may be granted for a disability which is proximately due to, the result of, or aggravated by an established service-connected disorder.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995).  Secondary service connection includes instances in which an established service-connected disorder results in additional disability of another condition by means of aggravation.  Allen, supra.

In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.  38 U.S.C.A. § 5107(b).

Turning to the Veteran's ischemic heart disease, he claims that he has this disability as a result of exposure to Agent Orange while on the ground in the Republic of Vietnam (RVN), or is secondary to service-connected PTSD with polysubstance dependence. 

If a veteran was exposed to an herbicide agent during active service, ischemic heart disease 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 C.F.R. § 3.309(e).  The disease shall have become manifest to a degree of 10 percent or more at any time after service.  38 C.F.R. § 3.307(a)(6)(ii). 

For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, 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 such agent during that service.  38 C.F.R. § 3.307(a).  The presumption of exposure to herbicide in Vietnam requires that a veteran actually stepped foot on land in Vietnam.  Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); VAOPGCPREC 27-97.

Where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation.  Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).  In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure.  See also Stefl v. Nicholson, 21 Vet. App. 120 (2007).  

In this case, the Veteran contends in part that his ischemic heart disease is due to exposure to Agent Orange in Vietnam.  He has not contended, and the evidence does not suggest, that his ischemic heart disease otherwise had its onset during or as a result of service.  Therefore, the Board will not discuss direct service connection.  Robinson, 21 Vet. App. at 545.

The Veteran's service records demonstrate that he set foot on land in Vietnam and therefore exposure to herbicide is presumed.  

Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against service connection for ischemic heart disease, claimed as secondary to herbicide exposure or to service-connected disability because the evidence does not show that the Veteran has this disability. 

The report of a September 2010 VA examination does not relate that the examiner reviewed the medical record.  Nevertheless, the examination is sufficient, as its relevance to the current decision stems from its assessment that the Veteran did not have ischemic heart disease.  Such an assessment did not require a review of the Veteran's medical records.  The report identifies the Veteran's current complaints and the results of the current examination.  The examiner concluded that for the Veteran's claimed condition of ischemic heart disease, there was no diagnosis because there was no pathology to render a diagnosis.  

In an addendum opinion, the examiner noted that a chest x-ray found arteriosclerotic heart disease (ASCVD ) to be present.  The presence of atherosclerosis did not imply pathology without associated impairment.  The Veteran had a stress test to determine the clinical significance of the claimed ischemic heart disease.  The stress test was normal.  The stress test was actually better than average for age-controlled subjects.  The stress test concluded that there was no clinically apparent coronary artery disease; the Veteran's heart was not in a state of ischemia, and the ASCVD found incidentally on chest x-ray was not clinically significant.

The Board finds that this opinion that the Veteran did not have ischemic heart disease constitutes probative evidence against the Veteran's claim.  It was based on the examiner's medical expertise as well as the current examination results, to which the report refers in detail.  This fact is particularly important, in the Board's judgment, as the references makes for a more convincing rationale.  See Bloom v. West, 12 Vet. App. 185 (1999); See Prejean v. West, 13 Vet. App. 444 (2000).

Post-service VA and private treatment reports are negative for any evidence of ischemic heart disease.  

The Board acknowledges the assertions by the Veteran in support of his claim.  He is competent to testify as to his observable symptoms during and after active duty.  Layno v. Brown, 6 Vet. App. 465 (1994).  The Board finds that any such assertions are credible.  However, the Veteran's contentions do not constitute medical evidence in support of his claim.  Although lay persons are competent to provide opinions on some medical issues, the specific issue in this case (whether the Veteran has ischemic heart disease) falls outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet.App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  As a result, the Veteran's assertions cannot constitute competent medical evidence in support of his claim.  

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Brown, 3 Vet. App. 223 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).  

In sum, the evidence demonstrates that the Veteran is not entitled to service connection for ischemic heart disease, claimed as due to herbicide exposure or secondary to service-connected disability.  As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for ischemic heart disease, claimed as due to herbicide exposure or secondary to service-connected disability, is denied.  

REMAND

The Veteran contends that his hypertension began during or is related to active duty, or is secondary to service-connected disability.  He is currently diagnosed with hypertension, but his service treatment records and post-service treatment records dated within one year of separation are negative for complaints or findings related to hypertension.  

Exposure to herbicides has been conceded.  While hypertension is not listed as a presumptive disease under 38 C.F.R. § 3.309 (e) and is specifically excluded as being part of ischemic heart disease, the National Academy of Science (NAS) Institute of Medicine's (IOM's) Veterans and Agent Orange: Update 2010, concluded that there was "limited or suggestive" evidence of an association between herbicide exposure and hypertension.  Thus, a medical opinion is required.  38 C.F.R. § 3.159(c)(4).  The opinion should also address whether the hypertension is aggravated by the service-connected PTSD.  

The most recent VA examination of the Veteran's PTSD with polysubstance dependence was conducted in April 2012.  Subsequent VA treatment records reflect that he continued to receive treatment for PTSD.  The representative's September 2016 brief contends that the examination is too old to use to adequately evaluate this disability.  Due to the passage of time, the Board finds that additional development is warranted to determine the current nature, extent, severity and manifestations of the service-connected PTSD with polysubstance dependence on appeal.  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatment records and any relevant private treatment records.  

2.  After completion of the foregoing, schedule the Veteran for an appropriate examination to determine the current nature and likely etiology of hypertension. Copies of all pertinent records should be made available to the examiner for review.  

Based on the examination and review of the record, the examiner should address the following:  

a. Whether it is as likely as not (a 50 percent probability or more) that the Veteran's hypertension is related to his acknowledged in-service herbicide exposure.  The examiner is advised to consider the National Academy of Science IOM's Veterans and Agent Orange: Update 2010 or Update 2012 that concluded that there was "limited or suggestive" evidence of an association between herbicide exposure and hypertension.  

b. Whether it is at least as likely as not (a 50 percent probability or more) that the Veteran's hypertension is caused OR aggravated by service-connected PTSD.  If the examiner determines that a there has been aggravation, the examiner should report the baseline level of severity of hypertension prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity. 

3.  Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD with polysubstance dependence.  Copies of all pertinent records from the eFolders should be made available to the examiner.  The examiner is requested to delineate all symptomatology associated with, and the current severity of, the PTSD with polysubstance dependence.  The appropriate Disability Benefits Questionnaire should be filled out for this purpose, if possible.

4.  Thereafter, readjudicate the claim.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, and given an opportunity to respond before the case is returned to the Board.

The appellant 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 (West 2015).



______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs