Citation Nr: 1756714	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  14-24 253	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Entitlement to service connection for left flank hernia repair with mesh.

2. Entitlement to service connection for a heart condition.

3. Entitlement to service connection for residuals of gallbladder removal.

4. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant, son

ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1954 to August 1957.  The appellant is the Veteran's surviving spouse.  She substituted herself in the claim pursuant to 38 U.S.C. § 5121A.    

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2010 and January 2012 decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).  Appellant and her son testified before the undersigned in a May 2015 hearing.  A hearing transcript is of record.  The Board previously considered and remanded this case in July 2015.  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) (2014).


FINDINGS OF FACT

1. The evidence shows that the left flank hernia was caused by service-connected left kidney removal.

2. The weight of the evidence is against finding that coronary artery disease is related to service or service-connected disabilities.

3. The weight of the evidence is against finding that gallbladder removal was related to service or service-connected disabilities.

4. Service connection for the cause of the Veteran's death was granted in June 2016.


CONCLUSIONS OF LAW

1. The criteria for an award of service connection for left flank hernia repair have been met.  38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303 (2017).

2. The criteria for an award of service connection for heart disability have not been met.  38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303 (2017).

3. The criteria for an award of service connection for residuals of gallbladder removal have not been met.  38 U.S.C. § 1110 (2014); 38 C.F.R. § 3.303 (2017).

4. The claim of DIC under 38 U.S.C. § 1318 is dismissed as moot.  38 U.S.C. 7104 (2014); 38 C.F.R. § 21.101 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Procedural duties

VA is required to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  The RO sent the Veteran notice letters in September 2010 and January 2011, prior to adjudication of his claims.  

Next, VA has a duty to assist appellant in the development of claims.  This duty includes assisting her in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, available medical records have been obtained and considered.  The Board notes that in November 2012 Congressional correspondence appellant reported the Veteran received SS (Social Security) disability since 1974.  Appellant will not be prejudiced if these records are not associated with the claims file.  The Veteran's heart disease and gallstones developed many years after 1974; therefore, Social Security records from that time would not provide relevant evidence that could substantiate the claims.  See Golz v. Shinseki, 590 F.3d 1317, 1322 (2010).  VA provided medical opinions for the claims in February 2016.  The AOJ substantially complied with the Board's remand directives by obtaining the February 2016 medical opinions.  See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998).  As such, the Board will proceed to the merits of the claims.

II. Service Connection

Appellant contends that the Veteran suffered a variety of ailments later in life due to exposure to chemicals in service.

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To establish entitlement to service-connected compensation benefits, 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).

Service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury.  38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). 

Certain diseases, including coronary artery disease, will be presumed service-connected if a veteran was exposed to herbicides in service, even if there is no record of the disease during service.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).  If a veteran served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, he or she will be presumed to have been exposed to herbicides.  38 C.F.R. § 3.307.  

The Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

Appellant and her son are competent to describe symptoms and experiences observable to their senses but not to determine the cause of gallstones or heart disease as this requires specialized medical knowledge and training.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  The Board finds them credible, as their statements have been detailed and consistent.

Flank hernia

After a review of the record, the Board finds that the criteria for service connection for left flank hernia repair have been met on a secondary basis.  38 C.F.R. § 3.303.

The evidence shows that the Veteran suffered a left flank hernia as a result of kidney surgery.  During the Board hearing, the appellant explained that the Veteran developed a hernia after his kidney removal surgery.  Private medical records show that the Veteran's left kidney was removed in August 2002 because of clear cell renal carcinoma.  A second set of private records shows that the Veteran had a left hernia repair in October 2005 and that the massive left flank hernia followed a previous nephrectomy for renal cell carcinoma.  The July 2015 Board decision granted service connection for residuals of kidney removal and the AOJ affected that grant in the June 2016 rating decision.  Based on this evidence, the hernia and resulting repair were the result of the Veteran's kidney removal.  Therefore, service connection for the left flank hernia is granted as a secondary disability of kidney removal.  See 38 C.F.R. §§ 3.303, 3.310.        

Heart disease and gallbladder removal

Based on the evidence of record, the Board finds the criteria for service connection for a heart disability and gallbladder removal have not been met.  38 C.F.R. § 3.303.

The evidence shows the Veteran had a heart disability and gallbladder removal.  VA and private treatment records note that the Veteran had a cholecystectomy in February 1996.  Records also show treatment for coronary artery disease and artery bypass grafting in September 1994.  The evidence does not show these conditions in service.  The Veteran's June 1957 separation examination was silent for any cardiovascular or gallbladder problems.  Treatment records show these disabilities were diagnosed nearly 40 years after service.  The Appellant has also not asserted that the Veteran developed coronary artery disease and gallbladder problems in service.  Instead, appellant asserts that the Veteran developed these disabilities because of exposure to chemicals in service.

During the Board hearing, appellant and her son testified that the Veteran told them of an odor continuously noticed at Fort Ord, working with chemical solvents to clean weapons, and wearing some sort of chemical protective gear.  The majority of the Veteran's service personnel records were deemed unavailable, but appellant submitted a contemporaneous newspaper clipping that shows the Veteran was stationed at Fort Ord and then transferred to Germany.  Appellant also submitted several articles discussing hazardous waste and chemicals used at Ford Ord.  Based on the Veteran's reports and the articles submitted by appellant, the Board finds that the Veteran was exposed to chemicals and solvents in service.  The prior Board decision granted service connection for Parkinson's disease, lung cancer, and kidney removal due to exposure to toxins in service.   

However, the weight of the evidence is against finding coronary artery disease and gallbladder removal related to service or service-connected disabilities.  The February 2016 examiner opined that coronary artery disease was less likely than not due to service or in-service chemical exposure.  The examiner explained that coronary artery disease develops when the major blood vessels to the heart, or arteries, become damaged or diseased, most often from cholesterol-containing deposits (plaque) and inflammation.  The examiner found that the Veteran had multiple risk factors for coronary artery disease including high cholesterol, obesity, and hypertension.  Similarly, the examiner opined that the Veteran's gallbladder removal was less likely than not related to service.  The examiner explained that the Veteran's gallbladder was removed because of gallstones, and he had risk factors for gallstones such as high cholesterol and obesity.

In an addendum opinion, the examiner found that coronary artery disease and gallbladder removal were less likely than not caused or aggravated by Parkinson's disease, lung cancer, or kidney removal, because there is no credible medical evidence that links Parkinson's disease, lung cancer, or kidney disease to heart disease or gallbladder disease.  Treatment records show that the Veteran's coronary artery disease and gallbladder removal occurred before he developed cancer.  

The preponderance of the evidence is against finding a causal connection between coronary artery disease or gallbladder removal and service or service-connected disabilities.  Lay persons are not competent to determine if coronary artery disease and gallstones could be caused by chemical toxins; medical evidence is required.  There are no competent medical opinions linking these disabilities to service as there were for lung cancer and Parkinson's disease.  The only medical opinion of record is against service-connected causation or aggravation.  The Board finds the 2016 examiner's opinions highly probative as the examiner considered the evidence and provided alternative etiologies for the Veteran's disabilities.  Given the weight of this evidence, service connection for coronary artery disease and gallbladder removal is not shown.  See 38 C.F.R. §§ 3.303, 3.310.  
  
Service connection on a presumptive basis is also not warranted.  As discussed above, coronary artery disease is presumed causally connected to service if a veteran was exposed to herbicide agents.  38 C.F.R. §§ 3.307(a)(6), 3.309(e).  An "herbicide agent" is defined as a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram.  38 C.F.R. § 3.307 (a)(6)(i).  The Veteran did not serve in Vietnam and never asserted such.  Although not presumed, exposure to herbicide agents can also be proven by the evidence in a particular case.  Appellant contends that the Veteran could have been exposed to herbicide agents when stationed at Fort Ord or in Germany.  At the Board hearing, she said the Veteran told her he was sprayed down by an unknown chemical in Germany.

The Department of Defense (DoD) has provided VA with a listing of locations outside Vietnam and the Korean Demilitarized Zone where tactical herbicides, such as Agent Orange, were used, tested, or stored.  Neither Fort Ord nor any location in Germany is not on that list.  Additionally, the Veteran's name was not found when searched on the DOD Chemical Biological Warfare Exposure database.  The articles submitted by appellant show that pesticides were used on Fort Ord but not those matching the chemical classification of an herbicide agent.  While the Board acknowledges that the Veteran may have been exposed to chemicals and solvents, there is no evidence to support that he was exposed to the specific chemicals known as herbicide agents for which these presumptions apply.  38 C.F.R. § 3.307 (a)(6).     

III. DIC under 38 U.S.C. § 1318

Service connection for the cause of the Veteran's death was granted in a June 2016 rating decision.  Dependency and Indemnity Compensation under 38 U.S.C. § 1318 is paid to the surviving spouse in the same manner as if the veteran's death were service-connected.  Here, the Veteran's death was service-connected, so appellant could receive no additional benefits from this claim.  Therefore, the appeal is dismissed as moot.  See 38 C.F.R. § 20.101.
   

ORDER

Service connection for left flank hernia is granted.

Service connection for a heart disability, including coronary artery disease, is denied.

Service connection for residuals of gallbladder removal is denied.

The appeal for DIC under 38 U.S.C. § 1318 is dismissed.



____________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs