Citation Nr: 1753783	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  14-37 416	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to service connection for ischemic heart disease (IHD), due to Agent Orange exposure.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Rothstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1965 to August 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's claim for service connection for IHD.

In October 2017, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge.  

The Board notes that a transcript of the October 2017 hearing has yet to be associated with the claims file.  The Board further notes that in September 2015, the Veteran submitted a request for records under the Privacy Act, and that a September 2017 acknowledgment letter from the VA Records Management Center indicates that such request remains outstanding.  However, as the Board is granting the benefit sought on appeal in full, there is no prejudice to the Veteran in proceeding with adjudication of this claim.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).


FINDINGS OF FACT

1.  The evidence is at least evenly balanced as to whether the Veteran has a current diagnosis of IHD.

2.  The evidence is at least evenly balanced as to whether the Veteran served in Vietnam.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, IHD is presumed to have been incurred in service.  38 U.S.C. §§ 1110, 1116, 1154, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA laws and regulations provide that if a veteran was exposed to Agent Orange during service, certain listed diseases, including IHD, are presumptively service-connected.  38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e).  A veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange.  38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii).  VA has interpreted the applicable regulation to mean that the presumption of service connection applies to those service members who physically set foot in the Republic of Vietnam.  See Haas v. Peake, 544 F.3d 1306, 1308 (Fed. Cir. 2008).

First, private treatment records reflect that the Veteran currently has an implantable cardioverter-defibrillator and has been diagnosed with various heart conditions, to include bradycardia, third degree atrioventricular block, congestive heart failure, cardiomyopathy, ventricular tachycardia, and atrial fibrillation.  In a May 2011 treatment note, Dr. L. indicated, in particular, that the Veteran's cardiomyopathy was non-ischemic.  Conversely, in an October 2017 letter, Dr. F. stated that the Veteran's primary diagnosis was IHD that was manifested by the presence of abnormal cardiac rhythm and cardiomyopathy.  Dr. F. explained that "[t]hese manifestations are the resultant sequelae of ischemia," that "[t]he lack of blood flow and oxygen can cause rhythm abnormalities, myocardium injury and alteration of metabolism," and that all of these have given rise to the clinical features exhibited by the Veteran (i.e., bradycardia, atrial fibrillation, and cardiomyopathy).  

The Board notes that as defined by 38 C.F.R. § 3.309(e), IHD includes, but is not limited to: acute, sub-acute, 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.  See 38 C.F.R. § 3.309(e).  Note (2) of 38 C.F.R. § 3.309(e) indicates that for purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease.  Id.

The above reflects that the evidence is in relative equipoise with regard to whether the Veteran has been diagnosed with IHD as defined in the applicable regulation.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of IHD.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to "any . . . point").  Therefore, the remaining issue is whether the Veteran served in Vietnam and is thus presumed to have been exposed to Agent Orange, which would warrant service connection on a presumptive basis for his IHD.

In this case, although the Veteran's service records do not specifically indicate that he served in Vietnam, the RO noted that the service treatment records did show that the Veteran was treated at a medical facility with an Army Post Office (APO) number of 96307, which was at Tan Son Nhutt Air Base in Vietnam, and thereby conceded that he served in Vietnam.  In addition, the Veteran's DD Form 214 shows that he served in the Army and had foreign service.  

Moreover, in service connection cases, the Board must consider lay evidence in addition to the service records, and the places, types, and circumstances of service.  See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a).  In this regard, during the October 2017 Board hearing and in various written statements, the Veteran has asserted that his active service included service in Vietnam.  The Board notes that neither the Veteran's lay statements nor the DD Form 214 definitively demonstrate that the Veteran had service in Vietnam.  However, both, when combined with the RO's finding that the Veteran was treated in Vietnam, are persuasive indicators that he did serve in Vietnam.  Additionally, as the lay statements in this regard are both competent and credible, the Board finds that the evidence is at least approximately balanced on whether the Veteran served in Vietnam.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that he served in Vietnam.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  As such, the Veteran is presumed to have been exposed to Agent Orange.

As the Veteran has been diagnosed with IHD, and this disability is presumed service connected in veterans who were exposed to Agent Orange, entitlement to service connection for IHD is warranted.


ORDER

Entitlement to service connection for IHD, due to Agent Orange exposure, is granted.




____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs