Citation Nr: 1723331 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 10-33 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a heart disability. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for a lung disability, including bronchitis and chronic obstructive pulmonary disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from October 1973 to October 1975 and in the United States Army from May 1978 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, a Travel Board hearing was conducted before a Veteran Law Judge (VLJ). A transcript of this hearing has been added to the record. Since that time, the VLJ who presided over the hearing left employment with the Board. The Veteran was notified of this fact via an April 2014 letter. Although informed of his option to have another hearing, a request for a new hearing was not received. In December 2013 and July 2016, the Board remanded this matter for additional evidentiary development. For the sake of clarity, the Board has recharacterized the Veteran's claims seeking service connection for valvular heart disease and bronchitis to cover the entire scope of the claimed symptoms. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). FINDINGS OF FACT 1. The Veteran's current heart disabilities, including mitral valvular disease status post replacement, rheumatic mitral valvular disease, aortic valvular disease, paroxysmal atrial fibrillation, and congestive heart failure, were not manifest during service or within the first post service year, and are not related to his military service, including his inservice exposure to herbicide agents. 2. The Veteran's current hypertension did not manifest during service or within the first post service year, and is not related to his military service, including his inservice exposure to herbicide agents. 3. The Veteran's current lung disabilities, including bronchitis and chronic obstructive pulmonary disease (COPD), were not manifest during service and are not related to his military service, including his inservice exposure to herbicides. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability, including mitral valvular disease status post replacement, rheumatic mitral valvular disease, aortic valvular disease, paroxysmal atrial fibrillation, and congestive heart failure have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 2. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). 3. The criteria for service connection for a lung disability, including bronchitis and COPD, have not been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2014); 38 C.F.R. § 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. VA's duty to notify was satisfied by a letter in January 2009. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In addition, the Board finds that the duty to assist a claimant has been satisfied. The Veteran's service treatment records are on file, as are various post-service medical records and VA examination reports. The Veteran was afforded a Board hearing in July 2012. As there is no allegation that the hearing provided to the Veteran was deficient in any way, further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Finally, the directives within the Board's prior remands have been completed. After a careful review of the file, 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). II. Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 38 C.F.R. § 3.309(a) may be considered for service connection under 38 C.F.R. § 3.303(b)). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection for certain chronic diseases, to include cardiovascular-renal disease and hypertension, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Bronchitis and COPD are not among the listed conditions. Id. Absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116 (f) and 38 C.F.R. § 3.307 (a)(6)(iii). Additionally, if a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases, including ischemic heart disease, shall be service-connected if the requirements of 38 C.F.R. § 3.307 (a)(6) are met, even if 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 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). VA has determined there is no positive association between exposure to herbicides and any other condition for which VA has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 41442-41449, 57586-57589 (1996). 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). The Board has reviewed all the evidence in the record. 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 appellant 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 each claim and what the evidence in the claims file shows, or fails to show, with respect to each 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 the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Heart Disability and Hypertension The Veteran filed his present claim seeking service connection for a heart disability and hypertension in December 2008. For purposes of VA compensation, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101. A review of the Veteran's claims file reveals that he currently has mitral valvular disease status post replacement, rheumatic mitral valvular disease, aortic valvular disease, paroxysmal atrial fibrillation, congestive heart failure, and hypertension. Accordingly, the Board's decision herein shall focus on whether any of these current disabilities are related to his military service, including inservice exposure to Agent Orange. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for any current heart disability or hypertension. The Veteran served on active duty in the United States Marine Corps from October 1973 to October 1975 and in the United States Army from May 1978 to May 1981. A review of his service treatment records was silent as to any complaints of or treatment for a heart disability or hypertension. No treatment for a heart disability or hypertension was shown or alleged to have occurred during service, or within the first post service year. The Veteran has not claimed to have had an ongoing heart disability or hypertension, and his current heart disabilities and hypertension are not entitled to a presumption of service connection based upon inservice exposure to herbicide agents, including Agent Orange. 38 C.F.R. §§ 3.307, 3.309. Following his separation from service, the first post service treatment report showing treatment for a heart disability or hypertension was in October 2005, 20 years after his separation from military service. There is also no competent medical evidence suggesting a link between any of his current heart disabilities and/or hypertension and the Veteran's military service, including inservice exposure to herbicide agents. A VA medical examiner in September 2016, following examination of the Veteran and review of his electronic claims file, opined that the Veteran's current heart disabilities and his hypertension were less likely than not incurred in or caused by his military service. As for his heart disabilities, the examiner cited the lack of any complaints of or treatment for any of these disabilities during service or for decades thereafter. The examiner also highlighted that the Veteran's diagnosis of valvular heart disease is not etiologically related to vascular heart disease; and that the Veteran does not currently have ischemic heart disease as a catheterization in October 2005 was normal. The examiner noted the Veteran had rheumatic heart disease, that there was no objective evidence that the Veteran was diagnosed with any febrile condition during military service that would have resulted in endocarditis causing mitral valve disease or aortic valve disease. The examiner further noted that the paroxysmal atrial fibrillation is due to the Veteran's mitral valve disease, and that the reported congestive heart failure was likely due to an episode of paroxysmal atrial fibrillation in view of his normal left ventricular function. In support of his hypertension opinion, the examiner cited the normal findings throughout the Veteran's service treatment records, as well as the lack of any treatment or diagnosis of hypertension until 2005. Moreover, the Veteran as a layperson has not been shown to be capable of linking any of these conditions to his military service, or his inservice exposure to herbicide agents. Accordingly, his statements and testimony regarding causation are not competent evidence to establish service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, there is no competent evidence linking any current heart disability or hypertension to the Veteran's military service, including his inservice exposure to herbicides. Absent such a nexus, service connection cannot be established. Accordingly, the preponderance of the evidence is against the Veteran's claims of service connection for a heart disability and/or hypertension. As there is no doubt to be resolved, service connection for a heart disability and/or hypertension is not warranted. B. Lung Disability The Veteran contends that he developed a breathing disability, including COPD and bronchitis, as a result of his military service, including inservice exposure to herbicide agents. The Veteran's initial enlistment examination, performed in October 1973, listed his lungs and chest as normal. A November 1974 treatment report noted his complaints of upper left quadrant pain. The Veteran reported a history of pneumonia when he was 15 with subsequently scarring of the lungs. No subsequent treatment for or complaints of a lung or breathing disability were found. The Veteran's October 1975 separation examination listed his lungs and chest as normal. The enlistment examination for Veteran's second period of service, performed in April 1978, found his lungs and chest to be normal. A December 1980 physical examination noted that his lungs and chest were normal. An x-ray examination of the chest performed at that time was found to be normal, and the Veteran denied having any history of shortness of breath, pain or pressure in chest, chronic cough, or asthma on a medical history report completed at that time. A review of the Veteran's claims file reveals that he currently has bronchitis and COPD. Accordingly, the Board's decision herein shall focus on whether any of these current breathing disability is related to his military service, including inservice exposure to Agent Orange. Based upon a longitudinal review of the record, the Board concludes that service connection is not warranted for bronchitis or COPD. There is no diagnosis of bronchitis or COPD during the Veteran's military service or for many years thereafter. Moreover, the Veteran has not claimed to have had an ongoing lung disability since his military service, and his current bronchitis and COPD are not entitled to a presumption of service connection based upon inservice exposure to herbicide agents, including Agent Orange. Following his separation from service, the first post service treatment report showing treatment for bronchitis or COPD was in January 2001, over 19 years after his separation from military service. There is also no competent medical evidence suggesting a link between the Veteran's current bronchitis and COPD and his military service, including inservice exposure to herbicide agents. A VA medical examiner in September 2016, following examination of the Veteran and review of his electronic claims file, opined that the Veteran's current bronchitis and COPD were less likely than not incurred in or caused by his military service. In support of this opinion, the VA examiner noted that while the Veteran's complaints in 1975 may have been consistent with an episode of acute bronchitis, it resolved without complications or sequelae as shown by subsequent examinations that were negative and a lack of any post service treatment or complaints until 2001. As for the COPD, the examiner noted that this condition was not shown in service or for decades thereafter, and the Veteran's eventual diagnosis of COPD was the result of his history of smoking. Finally, the examiner noted that neither the Veteran's bronchitis nor COPD are related to his inservice Agent Orange exposure. The Veteran as a layperson has not been shown to be capable of making a medical diagnosis or linking any of these conditions to his military service, or his inservice exposure to herbicide agents. Accordingly, his statements and testimony regarding causation are not competent evidence to establish service connection. Jandreau, 492 F.3d 1372. Consequently, there is no competent evidence linking the Veteran's current bronchitis and COPD to his military service, including his inservice exposure to herbicide agents. Absent such a nexus, service connection cannot be established. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a heart disability is denied. Service connection for hypertension is denied. Service connection for a lung disorder, including bronchitis and COPD, is denied. ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs