Citation Nr: 1743672 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 11-17 763 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a heart condition, to include as a result of exposure to herbicide agents. 2. Entitlement to service connection for hypertension, to include as secondary to a non-service connected heart disability and/or as a result of exposure to herbicide agents. 3. Entitlement to service connection for a prostate condition, to include an enlarged prostate, and to include as a result of exposure to herbicide agents. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Davidoski, Associate Counsel INTRODUCTION The Veteran had active military service from May 1965 to September 1968, which included service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA) and an April 2011 rating decision of the Augusta, Maine RO of the VA. The Board has recharacterized the issues on appeal as above to better reflect the allegations made by the Veteran. In May 2016, the Veteran appeared and provided testimony at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The issues of entitlement to service connection for a heart condition, to include as a result of exposure to herbicide agents and entitlement to service connection for hypertension, to include as secondary to a non-service connected heart disability and/or as a result of exposure to herbicide agents are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The weight of the probative evidence is against a finding that it is at least as likely as not (50 percent or greater) that the Veteran's currently diagnosed prostate disorder either began during or was otherwise caused by his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a prostate condition, to include an enlarged prostate, and to include as a result of exposure to herbicide agents, have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, adjudication of his claim at this time is warranted. 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. All service treatment records, VA treatment records, and private medical treatment records identified by the Veteran have been obtained. Furthermore, the Veteran testified at a Board hearing and a transcript of the hearing is of record. The Veteran was also provided with VA examinations in March and September 2010 and neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A veteran who served in Vietnam during the Vietnam Era is presumed to have been exposed to Agent Orange. 38 U.S.C.A. § 1116 (West 2014); 38 C.F.R. § 3.307 (2016). Certain enumerated chronic diseases associated with exposure to herbicide agents (Agent Orange) may be service connected on a presumptive basis as due to exposure to herbicides. 38 C.F.R. § 3.309(e) (2016). Of note, prostate cancer is a disease that VA regulations include on the presumptive list. No other prostate disease or condition is on the list. The Veteran contends that his prostate condition is associated with his military service. He has been diagnosed with an enlarged prostate and had a benign mass removed from his prostate in 2006. The mass was found to be a non-cancerous lipoma. The Veteran, having served in the Republic of Vietnam during the Vietnam Era, is presumed to have had exposure to herbicide agents. Because the Veteran is presumed to have herbicide agent exposure, service connection could be presumed if he was diagnosed with one of the enumerated chronic diseases associated with exposure to herbicide agents. Prostate cancer is among the presumptive chronic diseases associated with herbicide agent exposure, but an enlarged prostate is not. 38 C.F.R. § 3.309(e). Because the Veteran's prostate condition is not prostate cancer, it cannot presumptively be service connected to his herbicide agent exposure. Lacking a presumptive service connection for his prostate condition, the Veteran must establish the three elements of a direct service connection claim for service connection to be awarded. The Veteran's service treatment records are silent for any prostate treatment or condition. There is no allegation to the contrary. Moreover, the benign mass was excised years after service, and the enlarged prostate, to the extent it is considered to be a disability, was not diagnosed for years after service. Moreover, there is no medical evidence even suggesting that the Veteran's prostate condition either began during or was otherwise caused by his military service. As such, the criteria for service connection have not been met, and the Veteran's claim is denied. ORDER Service connection for a prostate condition, to include an enlarged prostate, and to include as a result of exposure to herbicide agents is denied. REMAND The Veteran was noted as having a systolic heart murmur at his enlistment physical in February 1965. He also believes that his heart conditions are due to his exposure to herbicide agents. He was provided VA examinations in February 2011 and January 2012 for ischemic heart disease, a condition which is presumptively connected to herbicide agent exposure, but ischemic heart disease has never been diagnosed. Rather, the Veteran has been treated for heart conditions, other than ischemic heart disease, and no VA examination has addressed whether he has any other current heart disabilities which could have been directly caused by his presumed herbicide agent exposure, or resulted from aggravation of his functional murmur during service. In an August 2017 Informal hearing presentation, the Veteran's representative noted that Dr. Nina Nayak, M.D., had opined that the Veteran's pre-existing heart murmur was, more likely than not, aggravated "as a result of him serving in the military, that also resulted in a repair of the mitral valve. I would also like to include, as secondary to this condition, a history of Syncope and Pulmonary Embolism." See Third Party Correspondence received 27 May 2016. The representative also noted that Dr. Kenneth Tobin, D.O., had opined that the "cardiac conditions of [the Veteran] are more than 50% likely as to have been aggravated as a result of him serving in the military." See Correspondence received 18 Aug 2016. Neither of these opinions were supported by a rationale or provided a baseline level of severity or explanation of worsening of the conditions, claimed to have been aggravated by service. Regarding the Veteran's claim for service connection for hypertension, the National Academy of Sciences (NAS) Institute of Medicine's "Veterans and Agent Orange: Update 2010" concluded that there is limited or suggestive evidence of an association between exposure to Agent Orange and hypertension. However, a medical opinion has not addressed the possibility that the Veteran's hypertension was caused by his presumed herbicide agent exposure. Additionally, if applicable, a medical opinion is needed to address whether the hypertension could be linked to a heart condition which could have been caused or aggravated by service. As such, additional opinions regarding the etiology of the Veteran's heart conditions and hypertension are necessary to adjudicate the claim. Accordingly, the case is REMANDED for the following actions: 1. Obtain a medical opinion regarding the etiology of the Veteran's heart condition (if an opinion cannot be provided without an examination, one should be scheduled). The examiner should answer the following questions: A) Was the Veteran's functional murmur, noted on his enlistment physical, aggravated by service (meaning that it worsened during service)? Why or why not? In so doing, please consider the two private medical opinions from Dr. Nayak and Dr. Tobin. B) For any other currently diagnosed heart disability, is it at least as likely as not (i.e., whether there is a 50 percent or greater likelihood) that such a heart disability either began during or was otherwise caused by the Veteran's military service, to include as a result of his presumed exposure to herbicide agents? Why or why not? C) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension either began during or was otherwise caused by his military service, to include as a result of his presumed exposure to herbicide agents? Why or why not? In answering this question, the examiner should discuss the relevance, if any, of the findings by the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides 2010 report "Veterans and Agent Orange: Update 2010" that continued to categorize hypertension as having limited or suggestive evidence of association with herbicide agent exposure (meaning that epidemiologic evidence suggests an association between exposure to herbicide agents and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence). B) Was the Veteran's hypertension at least as likely as not (probability of at least 50 percent) caused or aggravated (increased in severity) by his heart murmur or any other heart disability which was determined to at least as likely as not have begun during or been otherwise caused by his military service, to include as a result of exposure to herbicide agents? Why or why not? If aggravation is found, the examiner should identify a baseline level of severity of hypertension by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the hypertension. If such cannot be done, it should be explained why. 3. Then readjudicate the appeal. If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters 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). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs