Citation Nr: 1623834 Decision Date: 06/14/16 Archive Date: 06/29/16 DOCKET NO. 09-04 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for ischemic heart disease (IHD), due to Agent Orange exposure. 2. Entitlement to service connection for a cervical spine disability, to include cervical myositis and arthritis. 3. Entitlement to service connection for hypertension, to include as due to herbicide exposure. ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1965 to January 1967, to include service in the Republic of Vietnam. The Veteran was awarded the Combat Infantryman Badge (CIB). These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for arthritis and hypertension. Timely appeals were noted with respect to those decisions. In February 2011, the Board remanded the case for further development, to include obtaining records from Lincoln Hospital and affording the Veteran a VA examination as to the nature and etiology of his cervical spine disability. On March 16, 2011, the RO sent a letter to the Veteran requesting he complete and return a VA Form 21-4142 with the complete information for Lincoln Hospital. As of the date of this decision, the Veteran has not returned the form. In April 2011, the Veteran was afforded a VA examination for his cervical spine disorder. For the reasons indicated below, the examination was adequate. Thus, there has been compliance with the Board's remand instructions in this regard. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the Veteran's medical record shows that he was diagnosed with IHD in May 1988, and coronary artery disease (CAD) in January 2010. IDH and CAD, like hypertension, are diseases of the heart that are rated under 38 C.F.R. § 4.104. Although the Veteran's used the abbreviation HBP (high blood pressure) in his January 2008 claim to describe the disability for which he was claiming service connection, the Board's consideration of a claim is not limited to the terminology used by the claimant, but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009). Here, as the record reflects diagnoses of IHD and CAD, which are diseases presumptively service connected in veterans who served in Vietnam as explained below, the Board has broadened the claim to include these disabilities. The Board has also bifurcated the claim to reflect the different dispositions for IHD and hypertension. The claim for service connection for hypertension is addressed in the REMAND portion of the decision and is REMANDED to the agency of original jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran served in Vietnam and is therefore presumed to have been exposed to Agent Orange. 2. The Veteran has been diagnosed with IHD both prior to and during the pendency of the claim. 3. The Veteran does not have a cervical spine disability that is the result of or caused by his military service, to include myositis and arthritis. CONCLUSIONS OF LAW 1. The Veteran's IHD is presumed to have been incurred in his active military service. 38 U.S.C.A. §§ 1101, 1110, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2015). 3. The Veteran's cervical spine disorder was not incurred in or caused by active military service, and cervical spine arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duty to notify was satisfied by a letter on July 25, 2007. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Next, VA has a duty to assist the Veteran in the development of his claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatments and examinations. Moreover, his statements in support of the claim are of record, and these statements do not reflect that available outstanding evidence has been identified. The Board has also reviewed the medical records for references to additional treatment reports not of record, but nothing in these records suggests that there is any outstanding evidence with respect to the Veteran's claims. Additionally, the Veteran was afforded a VA examination in April 2011 for his spine disability. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As noted below, while the Board finds that the April 2011 VA examination is adequate, as it was predicated on consideration of the medical records in the Veteran's claims file, as well as specific examination findings and the Veteran's own contentions. The examiner considered the Veteran's statements and provided explanations for the findings made, relying on and citing to the records reviewed. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims being decided herein. II. Service Connection Service connection may be granted for disabilities resulting from disease or injury incurred or aggravated during active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of an injury or disease; and (3) evidence of a nexus between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C.A. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is a chronic disease. See 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a). In addition, for veterans with 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101(3), 1112(a)(1), 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). In relevant part, 38 U.S.C.A. 1154(a) (West 2014) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). IHD Service connection may be established on a presumptive basis for certain diseases, to include IHD, if a veteran was exposed to an herbicide agent, such as Agent Orange, during service. See 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. §§ 3.307, 3.309(e). IHD is defined to include CAD 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, to include Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The Veteran's military personnel files reflect that he had in-country service in the Republic of Vietnam. As such, the Veteran is presumed to have been exposed to Agent Orange. Here, the evidence shows that the Veteran was diagnosed with IHD in May 1988 and CAD in January 2010. Given that the Veteran has been diagnosed with IHD before and during the pendency of the claim and is presumed exposed to Agent Orange, service connection for IHD on a presumptive basis is warranted. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim). Cervical Spine Disability The Veteran contends that he has a cervical spine disability, to include cervical myositis and arthritis, for which he should be service-connected. The Veteran's STRs are silent as to any complaints, treatments, or diagnosis for a cervical spine disability. A January 1967 separation report of medical examination revealed a normal examination and no musculoskeletal abnormalities. In the contemporaneous report of medical history, the Veteran indicated that he did not have and had never had arthritis or rheumatism, bone, joint, or other deformity, lameness, or recurrent back pain. In a February 2008 statement in support of his claim, the Veteran contended that he had had arthritis since 1967, but in an October 2008 statement in support of his claim, the Veteran stated that he never sought or received treatment for arthritis while in service. Private treatment records reflect an August 1980 diagnosis for myositis and degenerative joint disease (DJD) of the neck, and a December 2007 diagnosis for osteoarthritis. The Veteran has thus met the current disability requirement. During his April 2011 VA examination, the Veteran reported a history of neck pain since military service in Vietnam when he would have to carry heavy boxes of ammunition on his shoulders through rough terrain. X-rays in April 2011 revealed multilevel cervical degenerative changes. The VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or a result of his military service because there was no evidence of neck pain or injury during service, no neck pain or injury during the year or even five years following separation from service, and no x-rays showing arthritis of the neck at any time during the same time period. Upon review of the evidence of record, the Board finds that service connection for a cervical spine disability is not warranted. As an initial matter, the Board acknowledges the Veteran's contentions that he had arthritis at the time he was discharged from service and that his current cervical spine disability is a result of or caused by his military service. Although the Veteran is competent to report symptoms such as neck pain or injury while in service, as a layperson without the appropriate medical training and expertise, he is simply not competent to provide a probative opinion on a medical matter such as an etiological relationship between his current cervical spine disability and his active military service. Jandreau, 492 F.3d at 1377. Thus, the Veteran's own assertions as to the etiology of his current cervical spine disability are not competent. The evidence shows that the Veteran did not have any complaints, treatments, or diagnoses for a cervical spine disability while in service. There is thus no indication of a chronic disease shown as such in service or within the presumptive period so as to permit a finding of service connected under 38 C.F.R. § 3.303(b). In addition, there is no indication of arthritis noted in service or within the presumptive period that was not shown to be chronic such that continuity of symptomatology under 38 C.F.R. § 3.303(b) is for application. In addition, arthritis was first diagnosed many years after service and there is no indication that any symptoms during the presumptive period were early manifestations of arthritis. Cf. 38 C.F.R. § 3.307(c); Traut v. Brown, 6 Vet. App. 495 (1994) (establishing service connection on a presumptive basis does not require that a chronic disease be diagnosed within the applicable time period; rather, symptoms that manifest within this time period may subsequently be determined to have been early manifestations of a chronic disease). Moreover, the Veteran's statements during the course of the appeal that he had neck pain since service are contradicted by the normal musculoskeletal findings on the separation examination and his negative responses to the questions regarding arthritis and other musculoskeletal symptoms at separation. The Board finds the contemporaneous statements to be of greater probative weight than those made many years later. In addition, the Veteran did not claim that he sustained a neck or cervical spine injury during combat. Thus, although the Veteran did engage in combat as indicated by his receipt of the CIB, the combat rules of 38 U.S.C.A. § 1154(b) are not for application with regard to this claim. Further, the April 2011 VA examiner opined that the Veteran's cervical spine disability was less likely than not incurred in or a result of his military service because there was no evidence of neck pain or injury during service, or during the year or five years following separation from the military service, and there were no x-rays showing arthritis of the neck until many years after service. Thus, the only competent opinion on this etiological question is negative. Moreover, in reaching this conclusion, the VA examiner considered all of the evidence and explained the reasons for his opinion based on an accurate characterization of the evidence of record. As such, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Therefore, the weight of the evidence reflects that the Veteran's current cervical spine disability did not manifest in service, is not related to service, and may not be presumed to have been incurred in service. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a cervical spine disability. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for IHD, due to Agent Orange exposure, is granted. Entitlement to service connection for cervical spine disability, to include cervical myositis and arthritis, is denied. REMAND The Board notes that hypertension is not among the presumptive diseases listed under 38 U.S.C.A. § 1116(a)(2); 38 C.F.R. § 3.309(e). As such, the Veteran may not be service-connected for hypertension on a presumptive based on Agent Orange exposure. However, the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Although the evidence of an association between hypertension and Agent Orange has been found insufficient to warrant a presumption of service connection, VA has recognized that there is limited or suggestive evidence of an association between hypertension and Agent Orange exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences (NAS) Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308, 20309-10 (Apr. 11, 2014). The Court has held in multiple memorandum decisions that VA's acknowledgment in the Federal Register that there is limited or suggestive evidence, of an association between Agent Orange exposure and hypertension was relevant to the question of whether a VA exam was warranted in connection with a claim for service connection for this disability and the failure to discuss the Federal Register NAS findings rendered the Board's reasons or bases inadequate, warranting vacatur and remand. See Clark v. Shinseki, No. 12-2667, 2013 WL 6729512 (Vet. App. Dec. 20, 2013); Rodela v. Shinseki, No. 12-2894, 2013 WL 6184952 (Vet. App. Nov. 27, 2013); King v. Shinseki, No. 12-2893, 2013 WL 5428781 (Vet. App. Sept. 30, 2013); Allsopp v. Shinseki, No. 12-1847 (Vet. App. Aug. 27, 2013). Private treatment records first diagnosed the Veteran with hypertension in July 1987. VA and private treatment records show continuous treatment for hypertension, with difficulty controlling the high blood pressure despite the use of medication. The Veteran has thus met the current disability requirement. Given that the Court has repeatedly indicated that a VA examination should be considered in cases of veterans who served in Vietnam and have been diagnosed with hypertension, the Board finds that such an examination is warranted in this case, particularly given the low threshold for finding that such an examination is warranted under 38 U.S.C.A. § 5103A(d). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the claim for service connection for hypertension is REMANDED for the following action: 1. Obtain a medical opinion as to the etiology of the Veteran's hypertension from a physician. The claims file must be sent to the physician for review. The physician should indicate whether it is as least as likely as not (50 percent probability or more) that the Veteran's hypertension is related to his military service, to include his presumed exposure to Agent Orange. A complete rationale should accompany any opinion provided. 2. After the above development has been completed, readjudicate the claim for entitlement to service connection for hypertension. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs