Citation Nr: 1748769 Decision Date: 10/30/17 Archive Date: 11/06/17 DOCKET NO. 10-04 109 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a heart disorder, to include as a result of presumed exposure to herbicides and/or as secondary to service-connected diabetes mellitus type II. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney-at-Law ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to March 1967, including service in the Republic of Vietnam (Vietnam). This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran initially requested a Board hearing. See VA Form 9 of January 2010. A review of the Veterans Appeals Control and Locator System (VACOLS) reflects that the Veteran canceled a hearing scheduled for April 1, 2014. He has not requested a rescheduled hearing, and his request for a Board hearing is considered withdrawn. See 38 C.F.R. §§ 20.702(e), 20.704(e) (2017). A rating decision of February 2008 denied service connection for a "heart condition." The Veteran did not appeal the decision or submit new and material evidence within one year of its issuance. The decision thus became final. See 38 U.S.C.A. § 7104 (West 2014); 38 C.F.R. § 20.1103 (2017). Since that time, a liberalizing law has created a new evidentiary standard by which a claim of entitlement to service connection for ischemic heart disease can be substantiated under 38 C.F.R. § 3.309(e). See 75 Fed. Reg. 39843 (July 13, 2010). When a statute or regulation creates a new basis of entitlement to benefits by liberalizing the requirements for entitlement, an applicant's claim of entitlement under the law or regulation is a claim distinct from a claim denied prior to the liberalizing law. See Spencer v. Brown, 4 Vet. App. 283, 288 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994). A claim based on the liberalizing law is a new claim requiring no new and material evidence to reopen the claim previously and finally disallowed. See Sawyer v. Derwinski, 1 Vet. App. 130, 133 (1991). Therefore, the Veteran's February 2009 claim for entitlement to service connection for "heart issues secondary to DM II" must be reviewed on a de novo basis and not as an application to reopen a previously denied claim. See Pelegrini v. Nicholson, 18 Vet. App. 112, 125 (2004). In July 2014, the Board remanded this matter for further evidentiary development. The appeal was then returned to the Board. In an April 2016 decision, the Board denied the issue on appeal. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a February 2017 Joint Motion for Remand (JMR), the parties requested that the Court vacate the Board's April 2016 denial of the issue currently on appeal. In a February 2017 Order, the Court granted the parties' JMR. The issue was then remanded to the Board for appropriate action. Following the most recent readjudication of this appeal by the Agency of Original Jurisdiction (AOJ) in the February 2015 Supplemental Statement of the Case (SSOC), additional pertinent lay and medical evidence was added to the record. However, the Veteran's representative waived the Veteran's right to have the AOJ initially consider this evidence in a statement dated in September 2017. 38 C.F.R. §§ 20.800, 20.1304 (2017). FINDINGS OF FACT 1. The Veteran has a current diagnosis of ischemic heart disease. 2. During the Vietnam Era, the Veteran served in Vietnam; thus, he is presumed to have been exposed to herbicide agents during his active military service. CONCLUSION OF LAW Service connection for ischemic heart disease is established on a presumptive basis. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.303, 3.304, 3.307, 3.309, 3.326(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran seeks service connection for his ischemic heart disease, to include as due to in-service herbicide agents exposure. In general, to establish service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in-service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C.A. §§ 1110, 1131. The law also establishes a presumption of service connection for diseases associated with exposure to certain herbicide agents. The law also provides a presumption of exposure for veterans who served in Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). If a veteran was exposed to an herbicide agent during his or her active military service, certain diseases, such as ischemic heart disease (to include coronary artery disease), shall be service-connected, if the disorder became compensably disabling at any time after the active military service. See 38 C.F.R. § 3.307(a)(6); 38 C.F.R. § 3.309(e). Specifically, if a veteran served on active duty in Vietnam during the Vietnam era (beginning on February 28, 1961, in the case of a veteran who served in Vietnam during that period, or beginning on August 5, 1964, and ending on May 7, 1975, in all other cases), the veteran is presumed to have been exposed to herbicides, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that military service. The last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in Vietnam during the period beginning on February 28, 1961, and ending May 7, 1975. In determining whether service connection is warranted for a disorder, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, regarding a current diagnosis, in June 2017, a private physician reviewed the Veteran's claims file and interviewed the Veteran. The physician opined that the Veteran had a current diagnosis of ischemic heart disease. The Veteran was also diagnosed with coronary artery disease at the March 2013 and February 2015 VA examinations. The June 2017 physician also estimated that the Veteran's ischemic heart disease currently manifests in symptoms that warrant a compensable rating under VA regulations. See 38 C.F.R. § 4.104, DC 7005. Specifically, the physician estimated that the Veteran's ischemic heart disease was manifested by a metabolic equivalents of task (METs) of 2-4 with symptoms of fatigue. Id. Unlike the prior VA examiners, the private physician found that the Veteran's METS could be attributed solely to his ischemic heart disease. The examiner provided four pages of medical rationale, taking into account prior examination findings and test results. Upon review of the complete file, the Board finds that the evidence both for and against the claim is now at least in equipoise as to whether the Veteran has ischemic heart disease that has manifested to a compensable degree. Id. The Veteran's DD-214 Form documents that he served with the U.S. Army. In March 2007, the National Personnel Records Center (NPRC) reported that the Veteran had in-country service in Vietnam during the Vietnam Era from August 23, 1966, to March 4, 1967. As there is no affirmative evidence of non-exposure, his exposure to herbicide agents in service is presumed. See 38 U.S.C.A. § 1116(f); 38 C.F.R. §§ 3.307(a)(6), 3.307(d), 3.309(e). As ischemic heart disease is a disease presumed to have been incurred from herbicide exposure and as the Veteran currently has ischemic heart disease that has manifested to a compensable degree post-service, the disease is presumed to have been incurred during his active military service. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.309(e). In conclusion, the Board finds that the benefit sought on appeal is granted. ORDER Service connection for ischemic heart disease is granted. ____________________________________________ V. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs