Citation Nr: 1736330 Decision Date: 08/31/17 Archive Date: 09/06/17 DOCKET NO. 13-28 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure, for purposes of accrued benefits. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD A.Spigelman, Associate Counsel INTRODUCTION The Veteran had active military service from April 1971 to April 1973, including service in Vietnam. The Veteran died on July [redacted], 2010. The appellant is the Veteran's surviving spouse. This case comes before the Board of Veteran's Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas that reviewed a December 2003 rating decision by the VARO in Atlanta, Georgia. Following the January 2011 decision, jurisdiction was returned to the VARO in Atlanta, Georgia. FINDINGS OF FACT 1. The Veteran died in July 2010 due to hemorrhagic shock, dialysis shunt rupture, end stage renal disease, and diabetes. 2. At the time of his death, the evidence of record did not show a diagnosis of ischemic heart disease. CONCLUSION OF LAW Ischemic heart disease was not incurred in or aggravated by active service, nor may it be so presumed. 38 U.S.C. §§ 1101, 1110, 1112 (2016); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran filed a claim of entitlement to service connection for a heart disability that was denied by VA in December 2003. The Veteran died on July [redacted], 2010. Subsequently, on August 25, 2010, the Veteran's widow received notice that, pursuant to Nehmer v. United States Veterans' Administration, the VA was reviewing the Veteran's claim of entitlement to service connection for a heart disability that had been denied in 2003. Shortly thereafter, the widow submitted a claim for dependency and indemnity compensation benefits and accrued benefits. In January 2011, dependency and indemnity compensation benefits were granted, but service connection for ischemic heart disease for accrued benefits purposes was denied. This appeal ensued. Service treatment records (STRs) are silent for complaints of, or treatment for any heart disability. Review of the post-service medical evidence of record indicates that the Veteran received treatment at the SEHU Wellness Center, the Medical College of Georgia, and the VA Medical Center (VAMC) for various disabilities. A review of the SEHU Wellness Center treatment notes of record shows that the Veteran had testing done in December 2002 for the Stroke and Heart Attack Prevention Program and was reported as bradycardic and hypertensive in April 2003. However, there is no indication from the treatment notes of record that the Veteran was found to have ischemic heart disease. (Service connection for hypertension was subsequently granted in a September 2007 rating action.) At an August 2003 VA examination, the Veteran reported that he was diagnosed with multiple disabilities. The Veteran explained that he had a history of diabetes mellitus, but did not report any cardiac complications. The Veteran also denied any history of cardiac dysfunction or related cardiac symptoms. Ischemic heart disease was not diagnosed. At an August 2007 VA examination, the examiner diagnosed the Veteran with diabetes mellitus, neuropathy in the hands and feet, renal disease, HIV and a hematogenous infection. However, the examiner found no data to support a diagnosis of a coronary heart disability, and no heart disability diagnosis was entered. At a December 2009 VA examination, the examiner opined that the Veteran was a total care patient who required help with completing activities of daily living such as dressing, hygiene and transportation. Upon examination, the examiner found that the Veteran's heart was in regular rhythm and that the S1 and S2 sounds were normal without murmur, gallop, or rub. The examiner noted that the Veteran had additional diagnoses including diabetes mellitus, end-stage renal disease, neuropathy in hands and feet, HIV and AIDS, and a hypertensive vascular disease. However, the examiner did not diagnose the Veteran with a heart disability. For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). There is no evidence of record showing the Veteran was diagnosed with a heart disability at the time of his death. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a disability diagnosed at the time of a veteran's death, there can be no valid claim. See, e.g., Brammer v. Derwinski, 3 Vet. App. 223 (1992). As the Veteran did not have a diagnosed heart disability at the time of his death, neither direct, presumptive, nor secondary service connection are applicable in this case. As such, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a heart disability, for accrued benefits purposes. ORDER Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure, for accrued benefits purposes, is denied. ______________________________________________ MICHAEL KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs