Citation Nr: 1740908	
Decision Date: 09/20/17    Archive Date: 10/02/17

DOCKET NO.  16-13 057	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for ischemic heart disease.


REPRESENTATION

Veteran represented by:	Charles D. Romo, Esq.


ATTORNEY FOR THE BOARD

J. Smith, Counsel


INTRODUCTION

The Veteran served on active duty from August 1963 to July 1965 in the United States Army.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St, Petersburg, Florida.

As a matter of clarification, a claim for service connection for ischemic heart disease, to include coronary artery disease, was denied in a July 2012 rating decision.  The Veteran filed a timely notice of disagreement (NOD) with the determination in September 2012, and further submitted new and material evidence also in September 2012, but then withdrew his NOD in October 2012.  VA confirmed the withdrawal of his appeal in a December 2012 letter.  However, the Board does not construe the present claim as an application to reopen.  In Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence.  The RO's July 2012 denial was based on the absence of a current diagnosis.  Since then, ischemic heart disease has been diagnosed.  As this diagnosis was not of record when the claim was previously denied, the Board finds that the present claim must be considered without regard to whether new and material evidence has been received.  Regardless, since the evidence would be new and material, the same result is reached.

In a January 2017 VA Form 21-526EZ, the Veteran filed a claim for entitlement to service connection for a kidney disorder.  This issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2016).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  38 U.S.C.A. § 7107(a)(2) (West 2014).



FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam during the Vietnam era from May 1965 to July 1965, and is presumed to have been exposed during such service to herbicide agents. 

2.  The Veteran is shown, as likely as not, to have ischemic heart disease.


CONCLUSION OF LAW

The criteria for entitlement to service connection for ischemic heart disease have been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).   Service connection may also 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).

VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to 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(a)(6)(iii). 

Personnel records show, and VA already established, that the Veteran served in the Republic of Vietnam from May 1965 to July 1965 and is presumed to have been exposed to herbicide agents.  See, e.g., May 2016 Statement of the Case.  
VA regulations provide that a number of diseases, including ischemic heart disease, shall be service-connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied.  38 C.F.R. § 3.309(e).  Except for chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy, these diseases must 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).

The crux of the issue here is whether or not the Veteran has ischemic heart disease.  Under the regulation, ischemic heart disease includes, but is not limited to acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina.  38 C.F.R. § 3.309(e).  

In a May 2012 Disability Benefits Questionnaire (DBQ), the Veteran was found to have congestive heart failure and cardiac hypertrophy or dilation.  The examiner, however, indicated he did not have ischemic heart disease.

On VA examination in June 2012, the examiner also found that while the Veteran had congestive heart disease, he did not have ischemic heart disease.  The examiner diagnosed non-ischemic cardiomyopathy.  The finding was based on the Veteran's medical records, his clinical history, and a physical examination.

In a September 2012 DBQ, Dr. B. diagnosed ischemic heart disease.  The Veteran was also found to have congestive heart failure and cardiac hypertrophy or dilation.  Dr. B.'s findings were based on a Positron Emission Tomography (PET) scan from August 2012, an electrocardiogram (EKG) from August 2012, an echocardiogram from August 2012, and a Carotid Doppler study from August 2012.  

In a February 2013 VA medical opinion, an examiner found the Veteran did not have ischemic heart disease.  He discussed the various testing that had been conducted, and found, "given this information which appears to be conflicting in nature, one cannot state for certainty at this time that this veteran has coronary artery disease."
On VA examination in April 2014, the examiner found the Veteran had nonischemic cardiomyopathy and did not have ischemic heart disease.  She stated that the PET scan indicated mild ischemia, but in the absence of a cardiac catheterization to evaluate the coronary arteries, she could not find he had ischemic heart disease.  She explained, "cardiac catheterization is the gold standard for MI or CAD.  To date, the veteran has not had a cardiac cath."

In October 2015 a cardiac catheterization was conducted at a private medical facility.  The procedure revealed a diagnosis of coronary artery disease.

In February 2017, the Veteran's private physician, Dr. H., submitted a report stating he had been treating the Veteran since November 2014, and that the Veteran's diagnoses included coronary artery disease.

In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for ischemic heart disease.

The May 2012 DBQ, and June 2012, February 2013, and April 2014 VA opinions are of diminished probative value as they were founded on an incomplete record which did not include a cardiac catheterization study.  When this study was finally conducted in 2015, ischemic heart disease was revealed.  

The Board finds the October 2015 and February 2017 private treatment reports adequate for the purposes of adjudication.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  The providers based their findings on diagnostic testing, which significantly included a cardiac catheterization report, as well as the Veteran's history, symptoms, and physical examinations.  

At a minimum, the evidence is at least in equipoise in showing that the Veteran has current ischemic heart disease that is presumed to be the result of exposure to herbicide agents resulting from his service in the Republic of Vietnam.  

For all of the above reasons, service connection for ischemic heart disease is warranted on a presumptive basis under 38 C.F.R. § 3.309(e).  


ORDER

Service connection for ischemic heart disease is granted.



____________________________________________
DONNIE R. HACHEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs