Citation Nr: 1751420 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-08 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for ischemic heart disease. 2. Entitlement to service connection for residuals of stroke. 3. Entitlement to service connection for atrial fibrillation. 4. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 5. Entitlement to service connection for obstructive sleep apnea (OSA). 6. Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran had active service from September 1966 to July 1968. These matters come to the Board of Veterans' Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Board is mindful that the June 2014 rating decision on appeal also denied the Veteran's claim of entitlement to service connection for a left shoulder disability, after which the Veteran filed a timely notice of disagreement (NOD) in February 2015 as to "all disabilities" denied within the June 2014 decision. See 38 C.F.R. § 20.201 (2017). When a claimant files a timely NOD, the RO must prepare and send to the claimant a statement of the case (SOC). 38 C.F.R. §§ 19.26, 19.29 (2017). Notably, the January 2017 SOC did not include the Veteran's properly appealed claim of entitlement to service connection for a left shoulder disability. Thus, although the Veteran's claim of entitlement to service connection for a left shoulder disability was not certified to the Board on appeal, the Board will address it herein for the sole purpose of ensuring the issuance of an SOC, as it does not appear from the record currently before the Board that an SOC has yet been issued addressing that particular issue or that there is any development of this claim occurring at the present time. The issues of entitlement to service connection for residuals of stroke, atrial fibrillation, COPD, OSA, and a left shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran has not been diagnosed with ischemic heart disease at any time during the pendency of the appeal. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C.A. §§ 1110, 1112, 1116, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Due Process Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection - IHD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted on a presumptive basis for certain specified diseases as due to herbicide exposure, provided the disease manifests to a compensable degree within a specified period in a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 U.S.C.A. § 1116(a) (West 2014); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2017). "Service in the Republic of Vietnam" includes service in the waters off shore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). Even where service connection cannot be presumed, service connection may still be established on a direct basis. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Court of Appeals for Veterans Claims (Court) has held that Congress specifically limited entitlement to service connected benefits to cases where there is a current disability. "In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran claims entitlement to service connection for ischemic heart disease, residuals of stroke, atrial fibrillation, COPD, and OSA as due to herbicide exposure during active service in Vietnam. Service treatment records do not document any complaints, treatment, or diagnosis of the Veteran's claimed conditions. Notably, physical examinations at service enlistment and service discharge document normal relevant clinical evaluations, and the Veteran denied any related complaints within concurrent reports of medical history. However, the Board notes that service personnel records document the Veteran's active service in Vietnam; therefore, he is presumed to have been exposed to herbicide agents. 38 U.S.C.A. § 1116(a); 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e). Initially, the Board acknowledges that ischemic heart disease is one of the enumerated conditions for which presumptive service connection is generally warranted based upon exposure to herbicide agents. 38 C.F.R. § 3.309(e). Significantly, however, the Board finds that the probative evidence of record does not document that the Veteran has been diagnosed with ischemic heart disease for any period on appeal; therefore, service connection is not warranted on a direct or presumptive basis for this claimed condition. Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. at 321. Although private treatment records from May 2014 document echocardiogram findings "suggestive of possible resting ischemic heart disease" or which "may be associated with a history of coronary heart disease," such findings are of little probative value as they are speculative in nature and unsupported by the additional evidence of record. See Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Moreover, upon VA examination in May 2014, a VA physician found that the Veteran's echocardiogram results revealed effects from his atrial fibrillation treatment; however, the examiner concluded that there was no pathology to render a diagnosis of ischemic heart disease. The Board accords this opinion high probative value because the definitive opinion, which is based on objective testing. Although the Veteran's lay statements are competent insofar as they report observable symptoms, see Layno v. Brown, 6 Vet. App. 465, 469 (1994); to the extent that the Veteran asserts that he has a diagnosis of ischemic heart disease, such statements are of no probative value, as the Veteran lacks the medical expertise to diagnose a complex cardiac condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In sum, the probative evidence of record does not document that the Veteran has been diagnosed with ischemic heart disease for any period on appeal; therefore, service connection is not warranted on a direct or presumptive basis for this claimed condition. Brammer, supra; McClain, supra. As such, the preponderance of the evidence is against the claim, there is no reasonable doubt to be resolved, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for ischemic heart disease is denied. REMAND Although the Board sincerely regrets the additional delay, a remand is required for further development concerning the Veteran's claims of entitlement to service connection for residuals of stroke, atrial fibrillation, COPD, OSA, and a left shoulder disability. Specifically, the Board finds that relevant VA opinions must be obtained regarding the Veteran's claims of residuals of stroke, atrial fibrillation, COPD, and OSA, and an SOC must be issued regarding his left shoulder claim. I. VA Opinions - Residuals of stroke, Atrial Fibrillation, COPD, and OSA VA must provide a medical examination or opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 C.F.R. § 3.159(c)(4)(i) (2017). Notably, an April 2014 letter from a private physician states that the Veteran's COPD, CVA (stroke), atrial fibrillation, and sleep apnea are "very likely" caused by his presumed exposure to herbicides and a subsequent July 2015 letter similarly concludes that the Veteran's COPD is "likely related" to his presumed exposure to herbicides. While such opinions are insufficient evidence on which to base a grant of service connection given their lack of supporting rationales, see Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008), the private opinions do provide at least some indication that the Veteran's claimed conditions may be associated with his active service, including his presumed exposure to an herbicide agent. As such, the Board finds that a remand is necessary to obtain relevant VA opinions regarding the etiology of the Veteran's residuals of stroke, atrial fibrillation, COPD, and OSA. Id. II. SOC - Left Shoulder As noted in the Introduction above, the Veteran has submitted a timely NOD regarding the RO's June 2014 denial of his claim of entitlement to service connection for a left shoulder disability. See 38 C.F.R. § 20.201. An SOC is required when a claimant protests a determination. 38 C.F.R. §§ 19.26, 19.29. Notably, the January 2017 SOC did not include the Veteran's properly appealed claim of entitlement to service connection for a left shoulder disability, and it does not otherwise appear that an SOC addressing that particular issue has been associated with the claims file. Therefore, remand is required for the issuance of an SOC regarding the Veteran's claim of entitlement to service connection for a left shoulder disability. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The SOC must be issued unless the Veteran's claim is resolved, such as by a complete grant of the benefit sought, or withdrawal of the February 2015 NOD as to that issue. The remanding of this particular issue must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of an SOC. 38 U.S.C.A. § 7105 (West 2014); Roy v. Brown, 5 Vet. App. 554 (1993). Therefore, the AOJ should return the Veteran's claim of entitlement to service connection for a left shoulder disability to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Arrange for the claims file to be reviewed by a qualified VA examiner(s) for medical opinions addressing the Veteran's claims of entitlement to service connection for residuals of stroke, atrial fibrillation, COPD, and OSA. The entire claims file and a copy of this remand should be made available to and reviewed by the examiner(s) in conjunction with the opinions, and all indicated studies should be conducted, including a full VA examination(s) if deemed necessary by the examiner(s). In other words, a physical examination is not necessary unless the examiner finds it is necessary to make an informed decision. The VA examiner(s) should review the claims folder and then address the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's residuals of a stroke is at least as likely as not related to active service, including the Veteran's presumed exposure to herbicides during active service? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's atrial fibrillation is at least as likely as not related to active service, including the Veteran's presumed exposure to herbicides during active service? (c) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's COPD is at least as likely as not related to active service, including the Veteran's presumed exposure to herbicides during active service? (d) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's OSA is at least as likely as not related to active service, including the Veteran's presumed exposure to herbicides during active service? The examiner(s) must provide all findings, along with a complete supporting rationale for any opinion rendered. Additionally, the resulting opinion(s) must specifically consider and comment upon all relevant evidence of record, including the April 2014 and July 2015 private nexus opinions. See VBMS entries with document type "Medical Treatment Record - Non-Government Facility," received 07/22/2015. The examiner should not rely on the fact that these are not on the list of enumerated diseases associated with herbicide exposure to conclude there is no relationship. If any of the above-requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. 2. After the above development, review the resulting opinion(s) to ensure its adequacy and compliance with the above directive. If any resulting opinion is inadequate for any reason, take any corrective action warranted. 3. Thereafter, readjudicate the Veteran's claims of entitlement to service connection for residuals of stroke, atrial fibrillation, COPD, and OSA. If any claim remains denied, provide the Veteran and her representative with a supplemental statement of the case (SSOC) and an adequate opportunity to respond, after which the matters should be returned to the Board for further adjudication, if otherwise in order. 4. Provide the Veteran and his representative with an SOC addressing the issue of entitlement to service connection for a left shoulder disability. The Veteran must be advised of the time limit in which he may file a substantive appeal as to that issue. 38 C.F.R. § 20.302(b) (2017). If, and only if, the Veteran timely perfects an appeal, return the matter to the Board for further adjudication, 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). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs