Citation Nr: 1753005 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 12-30 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a heart disability, to include as secondary to in-service herbicide exposure. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to March 1967, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The matter was originally before the Board in September 2013, at which time it was remanded for further development. The matter was returned to the Board in August 2014, at which time the Board denied the benefits sought on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Remand (JMR), the Court, in an April 2015 Order, vacated the August 2014 decision and remanded the matter to the Board. The matter was again remanded by the Board in an August 2015 and February 2016 decisions, and has now been returned to the Board for appellate review. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDING OF FACT The most probative evidence of record indicates that the Veteran's heart disease is unrelated to active service, to include exposure to herbicide agents therein. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C.A. §§ 1110, 1116 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone a VA examination in connection with his claim. The examination included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, and in order to avail the Veteran of every opportunity to prevail on his claim, the Board sought an expert medical advisory opinion from the Veterans Health Administration (VHA). That expert examiner reviewed the case file in detail, and furnished a thorough and reasoned opinion. The Veteran was afforded an opportunity to review the new evidence and submit additional evidence or argument in support of his claim, but chose not to do so. In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to service connection for a heart disability Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). For certain chronic diseases, including ischemic heart disease, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown within one year after service, under 38 C.F.R. §§ 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases. The Veteran is seeking entitlement to service connection for ischemic heart disease, to include as secondary to in-service exposure to Agent Orange. Per VA regulations, if a veteran was exposed to herbicide agents during service, certain diseases are presumed to have been incurred in-service if they manifest to a compensable degree within specified periods, and even if there is no record of such disease during service. 38 U.S.C.A. § 1116(a)(2) (West 2014); 38 C.F.R. §§ 3.307(a)(6), 3.309(e) (2016). Ischemic heart disease is among those diseases presumptively linked to herbicide agent exposure. However, other types of heart disease, such as atrial fibrillation induced cardiomyopathy, are not among those diseases presumptively linked to herbicide agent exposure. For such diseases, a preponderance of the evidence must demonstrate in-service incurrence and nexus for a Veteran to prevail on a service connection claim. The Veteran served in the Republic of Vietnam. Accordingly, the Board concedes in-service exposure to herbicide agents. He has argued that his heart disease is properly characterized as ischemic heart disease, and, as such, must be considered to be presumptively linked to service. The record reflects no treatment sought or received for a heart condition or heart-related symptoms in service, or for many years after separation. August 2010 private treatment records reflect a diagnosis of congestive heart failure, while November 2010 VA treatment notes document a history of atrial fibrillation. Testing conducted in September 2010 revealed normal coronary arteries, but mild mitral insufficiency, leading to an assessment of dilated cardiomyopathy. Electrodiagnostic testing from December 2010 revealed "[n]o evidence of inducible ischemia." March 2011 VA treatment records confirm the diagnosis of atrial fibrillation with suspected heart failure. An April 2011 disability benefits questionnaire completed by a private provider reflects an assessment that the Veteran is beset by ischemic heart disease, based on electrodiagnostic evidence of possible myocardial ischemia, but leaves most of the form's questions blank. Testing conducted at a May 2011 VA examination showed "normal coronary arteries." The examiner furnished diagnoses of congestive heart failure, atrial fibrillation, and dilated cardiomyopathy, and opined that the Veteran did not have ischemic heart disease. An October 2010 disability benefits questionnaire completed by a private provider indicates the presence of ischemic heart disease, but the Board notes that that provider's treatment records do not contain such a diagnosis. Rather, they indicate that the Veteran's "medical history is pertinent for hypertension and congestive heart failure." A VA examiner with whom the Veteran met in July 2012 stated that the Veteran's "heart failure and [atrial fibrillation] are related to his hypertension and non-ischemic cardiomyopathy," adding "[h]ypertensive heart disease with normal coronaries does not meet the criteria for [ischemic heart disease]." Another VA examination was conducted in September 2013. That examiner furnished a detailed opinion stating, in part, "[h]erbicde exposure, particularly Agent Orange, has been linked to ischemic heart disease which includes coronary artery disease and ischemic cardiomyopathy. However, the [Veteran]has not been diagnosed with any ischemic heart disease, coronary artery disease or ischemic cardiomyopathy to date. Congestive heart failure and atrial fibrillation associated with elevated blood pressure or hypertension and NON-ischemic cardiomyopathy have NOT been causally linked to Agent Orange herbicide exposure. The current medical-scientific literature does not establish any causal link between Agent Orange herbicide exposure and a NON-ischemic cardiomyopathy with atrial fibrillation, congestive heart failure, [or] hypertension. Furthermore, [the Veteran] has a [positive] family history of congestive heart failure per the record." Pursuant to a Board remand, a subsequent VA examination was conducted in September 2015, which revealed well-compensated congestive heart failure, but no ischemic heart disease. Further, the examiner opined that the Veteran's heart condition was unrelated to any aspect of service, to include the conceded exposure to herbicide agents. Finding the opinion wanting in its failure to address the private provider's assessment of ischemic heart disease based on the equivocal April 2011 echocardiogram results, the Board ordered another examination, conducted in December 2016. Pursuant to that examination, the VA examiner explained that the Veteran's heart condition did not qualify within the generally accepted medical definition of ischemic heart disease. In August 2017, the Board sought an expert VHA medical opinion from a cardiologist. In September 2017, that cardiologist, who conducted a thorough review of the medical file in this case, furnished a medical advisory opinion addressing the etiology of the Veteran's heart condition. He stated, in relevant part: "It is my opinion that the [Veteran] suffered from a nonischemic cardiomyopathy probably related to tachycardia-induced cardiomyopathy, and there is no definitive evidence for ischemic heart disease. By testing, he has shown improvement of his left ventricular ejection fraction with nearly a normal ejection fraction on repeat echocardiographic studies... On review of the complete records...it is my opinion that the [Veteran's] cardiac issues, which include transient reduction of Left Ventricular systolic function [were] most likely related to an atrial fibrillation induced cardiomyopathy. On oral objective testing, [the Veteran] has no evidence of ischemic heart disease. His symptoms have improved dramatically since aggressive treatment of atrial fibrillation was done. In conclusion there is no evidence of herbicides (Agent Orange) as the cause of the [Veteran's] cardiac issues." The Board accepts this opinion as the most probative evidence of record on the question of the etiology of the Veteran's heart disability. Although it does not directly address a theory of service connection other than as related to Agent Orange exposure, the Veteran has advanced no such theory, and the Board notes the absence of heart-related treatment or diagnoses in service or for many years thereafter. Consideration has been given to the Veteran's personal assertion that his heart disease is related to service. However, while lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The disability at issue is not a condition that is readily amenable to probative lay comment regarding etiology. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Based on the above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the appeal is denied. ORDER Entitlement to service connection for a heart disability is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs