Citation Nr: 1642363 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 12-30 146 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicides. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to July 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. FINDING OF FACT The competent medical evidence does not demonstrate that the Veteran has ischemic heart disease. CONCLUSION OF LAW Service connection for ischemic heart disease is not warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2014); 38 C.F.R. § 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, enlarged VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of any information, and any medical or lay evidence, not previously provided to VA that is necessary to substantiate the claim. Furthermore, as part of the notice, VA must indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will obtain. VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Pursuant to its obligations under the VCAA, VA is required to provide notice to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO provided the Veteran with pre-adjudication VCAA notice via letter dated in April 2011. He was notified of the evidence needed to substantiate his claim for service connection and that VA was responsible for obtaining military service records, records from VA medical centers, or records in the custody of other agencies, so long as he adequately identified those records and authorized VA to obtain those records. In addition, he was informed that he could submit records not in the custody of a federal agency on his own behalf or authorize VA to obtain such records, and that he was ultimately responsible for obtaining any requested records not in the custody of a Federal department or agency. Finally, the letter informed him of the criteria that VA utilizes when determining the disability rating and the effective date of awards. Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. The RO has obtained the Veteran's service personnel and treatment records. The RO also obtained postservice VA and private treatment records. The Veteran has not identified any additionally available evidence for consideration. The claims file includes disability benefit questionnaires (DBQ) dated in February and in April of 2011, as well as a VA examination report from August 2012, in connection with the Veteran's service connection claim. 38 U.S.C.A. § 5103A. As the VA medical professionals who examination considered the Veteran's history and provided a rationale for the conclusion reached, the Board finds that the opinion contained therein adequate to decide the claim. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). In recognition of these efforts by the RO to obtain the known evidence that may substantiate the Veteran's claim, and it being clear that the Veteran has not indicated that there exists additional evidence to support his claim, the Board concludes that no further assistance is required to be provided to him in developing the facts pertinent to his claim in order to comply with the duty to assist. Legal Criteria VA may grant service connection for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In the case where a veteran who served for 90 days or more of active, continuous service and a chronic disease becomes manifest, the disease shall be presumed to have been incurred in or aggravated by service even though there is no evidence of such disease during the period of service. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307. Included within the purview of chronic diseases is ischemic heart disease. 38 C.F.R. § 3.309. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred during service, or, if the injury or disease preexisted such service, a showing that the injury or disease was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing that a purported injury or disease is connected to service, such that a veteran is entitled to potential benefits, requires competent and credible evidence of the following three things: (1) a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship, i.e. a nexus, between the disease or injury in service and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). With regards to a showing of chronic disease in service, it is necessary for the Veteran to demonstrate a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Where the disease identity is established, there is no requirement of evidentiary showing of continuity. However, continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). VA regulations provide that certain diseases associated with exposure to herbicide agents, including CLL, may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307(a)(6) are met. The term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(d)(6)(i). Section 3.307(d)(6) also provides that 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(d)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. Id. The diseases listed at 38 C.F.R. § 3.309(e) to which the presumption of service connection applies shall have become manifest to a degree of 10 percent or more any time after service, except that chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). This presumption of service connection will attach, even in the absence of any evidence of the disease while in service, provided that the rebuttable presumption provisions of 38 U.S.C.A. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). The Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 67 Fed. Reg. 42600-42608 (2002). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also 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 Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Notwithstanding the above, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board, as fact finder, must determine the probative value or weight of the admissible evidence. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (citing Elkins v. Gober, 229 F.3d 1369, 1377 (Fed.Cir.2000) ("Fact-finding in veterans cases is to be done by the Board")). VA must give due consideration to all pertinent medical and lay evidence in a case where a veteran is seeking service connection. 38 U.S.C.A. § 1154(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis The Veteran asserts that he is entitled to service connection for ischemic heart disease as due to his exposure to herbicides while serving in the Republic of Vietnam. Without fully addressing the merits of this contention, the Board finds that the evidence of record shows that the Veteran does not have ischemic heart disease and that therefore his service-connection claim must be denied. A review of the claims file shows that his first recorded complaint of symptoms related to ischemic heart disease was during an office visit in July 1998 with Dr. A.S. at The Resource Center. According to the corresponding report, he complained of experiencing chest pain brought on by physical exertion. Dr. A.S. noted that the Veteran was once prescribed medication for hypertension but did not refill the medication after one month. The Veteran's blood pressure at the time was 130/92. An electrocardiogram was normal. A subsequent progress note dated in August 1998 indicates that the Veteran had an echocardiogram done which revealed aortic stenosis. On this basis the Veteran was diagnosed by Dr. A.S. with coronary artery disease. Thereafter, further progress notes dated in October and November 1998 show that the Veteran had a stress test which revealed a mostly fixed inferior wall defect with slight reversibility on the fringes. On the most recent outpatient record from Dr. A.S., dated in January 1999, the diagnosis of coronary artery disease was not continued. On a March 2003 cardiology diagnostic study report prepared by a VA cardiologist, it was noted that although the Veteran had moderate to severe aortic stenosis, he did not have any of the three symptoms for a classic diagnosis of arteriosclerosis, namely, angina, congestive heart failure, or syncope. A catheterization of both sides of the heart revealed mildly elevated pulmonary arterial pressures, normal left ventricular function, and no significant coronary artery disease. A September 2004 critical care unit note from a VA medical center indicates that the Veteran was admitted for aortic valve replacement surgery which was successful. His primary medical complaints were listed as aortic stenosis, chronic obstructive pulmonary disease, hypertension, and hyperlipidemia. An echocardiogram administered before the surgery showed mild left ventricular hypertrophy with normal left ventricular cavity size and systolic function, mild mitral annular calcification, and the rest of the valves and chambers being normal. Thereafter, a December 2004 echocardiogram at a VA medical center revealed mild concentric left ventricular hypertrophy, a normal left ventricular wall other than paradoxical septal motion, mild paravalvular aortic insufficient, mild mitral leaflet thickening, mild left atrial dilatation, mild mitral regurgitation, and trace tricuspid regurgitation. The examiner indicated that the Veteran was recovering well from his September 2004 surgery. The Veteran has submitted two DBQs in support of his claim, both of which were prepared by a Dr. Z.P. On the first DBQ, dated in February 2011, Dr. Z.P. found that the Veteran had possible ischemic heart disease with severe aortic stenosis, cardiac hypertrophy, and atrial fibrillation. It was also noted that he had a history of aortic valve replacement surgery. Dr. Z.P. denied any history of congestive heart failure, myocardial infarction, or any treatment associated with ischemic heart disease. Although Dr. Z.P. did not conduct a stress test, it was estimated that the Veteran could function at a MET level of one to three. With regards to the functional impact of the Veteran's heart condition, Dr. Z.P. asserted that the condition impacted his ability to work as the Veteran had severe dyspnea which prevented him from walking more than one to two blocks. On the second DBQ, dated in April 2011, Dr. Z.P. marked that the Veteran did have ischemic heart disease, and specifically detailed the fact that he had atrial fibrillation and severe aortic stenosis, as well as mild cardiac hypertrophy. Dr. Z.P. again denied any history of congestive heart failure, and again estimated that the Veteran could function at a MET level of one to three. Furthermore, Dr. Z.P. marked that the condition impacted the Veteran's ability to work but did not include any explanation as to why this was so. The only test cited in this study from the appeal period (beginning March 2011) was a chest x-ray. Dr. Z.P. did not in any way described why the diagnosis of ischemic heart disease might have firmed up, or upon what evidence that might have been based. The Veteran was afforded a VA examination in August 2012 in order to have an examiner first determine whether he had ischemic heart disease and if so then provide an opinion as to the nature and etiology of the ischemic heart disease. At the outset, the examiner found that the Veteran did not have ischemic heart disease, and noted that there was no history of any of the symptoms or treatments that typically characterize ischemic heart disease. The examiner specifically denied a history of congestive heart failure. Although the examiner did not conduct a stress text, the Veteran's level of cardiac functioning was estimated at three to five METs. This corresponded to activities such as light yard work, mowing the lawn, or brisk walking, after which the Veteran reported symptoms of dyspnea, fatigue, and angina. An echocardiogram revealed cardiac hypertrophy, with an ejection fraction of 60 percent. With regards to the functional impact of the Veteran's heart condition, the examiner noted that the Veteran's symptoms of having difficulty with physical exertion leading to chest pain and a pounding heart were attributable to his severe chronic obstructive pulmonary disease. In support of the determination that the Veteran did not have ischemic heart disease, the examiner noted the results of the corresponding echocardiogram, which showed a normal left ventricle, mild left atrial dilatation, mild mitral annular calcification with mild sclerotic changes of the mitral valve, grade 1 left-ventricular diastolic dysfunction, and a normal right heart. The examiner also detailed the results of a June 2011 cardiology chart review, in which it was found that although the Veteran had significant aortic stenosis and a history of atrial fibrillation, there was no history of significant coronary artery disease and thus no ischemic heart disease but rather valvular heart disease. The examiner further reviewed the results of the March 2003, March 2004, and September 2004 VA cardiology reports. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that the Veteran has had ischemic heart disease for VA benefit purposes at any point during the pendency of the appeal. The Veteran has submitted records from Dr. A.S. with The Resource Center dated from July 1998 to January 1999 which show that he was originally diagnosed with coronary artery disease based on findings of aortic stenosis, hypertension, and symptoms of chest pain and heavy breathing following physical exertion. However, it appears from the latest outpatient record by Dr. A.S. dated in January 1999 that the coronary artery disease diagnosis was not continued. Thereafter, VA treatment records dated from March 2003 to December 2004 show diagnoses of chronic obstructive pulmonary disease and aortic stenosis but no diagnosis of ischemic heart disease despite several diagnostic examinations. The Board does not doubt that the Veteran has a history of cardiovascular treatment, but the bulk of the treatment records date well prior to the date of claim in March 2011. For the Board to find a current diagnosis of ischemic heart disease upon which to predicate a grant of service connection, the disability in question must be shown during the appeal period. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The only confirmatory diagnosis of ischemic heart disease contained in the claims file during the appeal period is the April 2011 DBQ prepared by Dr. Z.P. This diagnosis must be considered in light of the August 2012 VA examiner's opinion that the Veteran did not have ischemic heart disease. Where there are conflicting private and VA medical opinions contained in the claims file, as is the case here, the Board is entitled to independently assess the opinions and make a determination as to relative weight to assign to each opinion. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). If the Board finds that a private opinion is less persuasive than an opinion offered by a VA medical examiner, it may attribute more probative weight to the VA medical examiner's opinion, so long as that determination is supported by an adequate statement of reasons or bases for doing so. D'Aires v. Peake, 22 Vet. App. 97, 107-108 (2008). On the one hand, Dr. Z.P. on the April 2011 DBQ marked down that the Veteran had ischemic heart disease, but offered no rationale for this conclusion, and between the two DBQ's denied that the Veteran has congestive heart failure, myocardial infarction, or a history of any treatment related to ischemic heart disease. No explanation was provided for why the prior finding of "possible" ischemic heart disease had been firmed up, either in terms of additional studies or a rationale based on medical findings and/or literature. By contrast, in the August 2012 VA examination, the examiner reviewed the Veteran's entire medical history of evaluation and treatment for heart conditions, and found a consistent pattern of symptoms attributable to the diagnosed chronic obstructive pulmonary disease and aortic stenosis. This review supported the examiner's ultimate conclusion that the Veteran had valvular heart disease as opposed to ischemic heart disease. After comparing the two opinions, and in consideration of the record, the Board finds that the August 2012 VA examiner's opinion that the Veteran had valvular heart disease rather than ischemic heart disease to have far more probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (a medical opinion must be supported by sufficient evidence and cannot necessarily rely solely on the claims file alone); see also Sklar v. Brown, 5 Vet. App. 140 (1993) (the probative value of a medical opinion is based on the scope of the examination or review, as well as the relative merits of the analytical findings). Without a sufficient rationale for the shift in diagnosis between the two DBQs, Dr. Z.P.'s determination cannot support a finding that the Veteran has ischemic heart disease, especially in light of the fact that it is contradicted by the Veteran's history of diagnoses of and treatment for valvular heart disease. The Board would further point out that the Veteran has not presented competent evidence suggesting a causal link between any other form of heart disease (e.g., valvular) and service, as a direct service connection theory, and there is no evidence whatsoever of heart disease in service or in the year thereafter. The Board acknowledges that the Veteran has asserted that he experiences symptoms of ischemic heart disease, and he is certainly competent to describe the symptoms of a heart disorder, to include chest pain and shortness of breath. However, the many cardiological evaluations as well as the opinion of the August 2012 VA examiner have far more probative weight than the Veteran's lay statements. Although the Board has considered the Veteran's assertions regarding his symptoms of a heart disorder, lay persons such as the Veteran are not competent to provide diagnostic determinations as to the etiology of those symptoms, as such a determination involves questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the Board's estimation, the preponderance of the evidence weighs against a determination that the Veteran has ischemic heart disease, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the preponderance of the evidence is against the Veteran's claim of service connection for ischemic heart disease, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for ischemic heart disease, to include as due to herbicide exposure, is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs