Citation Nr: 1756900 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-27 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a heart disorder, to include atrial fibrillation, global or tachycardia-induced cardiomyopathy, and congestive heart failure (CHF) (claimed as ischemic heart disease), to include as due to exposure to Agent Orange. 2. Entitlement to service connection for removal of a cyst of the tongue, to include as due to exposure to Agent Orange. 3. Entitlement to service connection for a lung nodule, to include as due to exposure to Agent Orange. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Allen, Associate Counsel INTRODUCTION The Veteran had active duty from July 1967 to July 1970. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In February 2015, the Board denied the issues identified on the cover page along with the issues of entitlement to service connection for a cyst of the back and for a sebaceous cyst of the neck. The Veteran appealed the Board's February 2015 to the U.S. Court of Appeals for Veterans Claims (Court). In November 2015, the Court granted a Joint Motion for Remand (JMR), and pursuant to an order issued in accordance with the JMR, the earlier Board decision was vacated and the claims remanded for additional development. In February 2016 and in February 2017, the Board remanded the claims for additional development. While on remand, in September 2017, a rating decision was issued granting service connection for a cyst of the back and for a sebaceous cyst of the neck. Therefore, these issues are no longer before the Board. FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed to a herbicide agent, i.e. Agent Orange. 2. The Veteran does not have ischemic heart disease (IHD). 3. The Veteran's diagnosed heart conditions, including atrial fibrillation, global or tachycardia-induced cardiomyopathy, congestive heart failure (CHF), and non-ischemic heart disease are not related to any disease, injury, or event in service, including herbicide agent exposure. 4. A cyst of the tongue was initially manifested following service, and is not shown to be related to service, to include exposure to Agent Orange. 5. A lung nodule was initially manifested following service, and is not shown to be related to service, to include exposure to Agent Orange. CONCLUSIONS OF LAW 1. A heart disorder, to include atrial fibrillation, global or tachycardia-induced cardiomyopathy, congestive heart failure (CHF), non-ischemic heart, was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. § 3.303 (2014). 2. A cyst of the tongue was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. § 3.303 (2014). 3. A lung nodule was not incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. § 3.303 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Letters dated in July and December 2010 contained the notice necessary regarding the claims decided herein. Additionally, neither the claimant nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. Regarding VA's duty to assist, all appropriate development to obtain the Veteran's available, pertinent medical records has been completed. Service treatment records (STRs) and available VA and private post-service treatment records been obtained. The claimant has not identified any pertinent, outstanding records that could be obtained to substantiate the claim. The Board is also unaware of any such records. The Veteran was afforded the appropriate VA examination for his claims in October 2010, May 2017, and June 2017. The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a thorough examination of the Veteran and consider all of the pertinent evidence of record, to include the Veteran's statements, and provides all the necessary information in order to properly consider the claims, including a supporting explanation. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Service Connection 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. § 1110; 38 C.F.R. § 3.303(a). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.309(d). Presumptive service connection on the basis of herbicide agent exposure is provided for specified diseases manifested to a degree of 10 percent 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. § 1116(a). If a veteran was exposed to herbicide agents during active military, naval, or air service, ischemic heart disease (including, but not limited to, acute, subacute, 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) shall be service-connected if the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Notwithstanding the provisions of §§ 3.307, 3.309, the Veteran's Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude an appellant from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). This principle has been repeatedly reaffirmed by the Federal Circuit, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. (1990). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Heart Disability The record shows the Veteran served in Vietnam from December 1967 to December 1968 and, therefore, is presumed to have been exposed to Agent Orange. The service treatment records are silent for complaints or findings concerning a heart issues. On a report of medical history in June 1970, the Veteran denied and chest pain. The June 1970 separation examination shows the heart and chest were normal. A chest X-ray was normal. The Veteran was admitted to a VA hospital in April 2010. It was reported he had been in his usual state of good health until two years earlier when he began to notice an abnormal heart rhythm after exercising, and palpitations. He did not seek medical attention at that time, and did not experience any associated symptoms. He began to experience mild fatigue in December 2008, and in January 2010, he felt extremely fatigued while on a ski trip. He was seen in March 2010 and diagnosed with atrial fibrillation. The diagnoses were atrial fibrillation and congestive heart failure. When the Veteran was seen in another VA facility later in April 2010, it was stated that the etiology of atrial fibrillation was most likely idiopathic versus an unrecognized ischemic event versus obstructive sleep apnea. It was indicated his electrocardiogram showed no ischemic change. On VA examination of the heart in October 2010, the examiner noted he reviewed the record. The Veteran related he began to notice increased fatigue and occasional dizziness while skiing last winter. It was noted he had no history of myocardial infarction or hypertensive heart disease. The diagnosis was atrial fibrillation with global cardiomyopathy. It was stated there was no evidence for ischemic heart disease as the etiology of the Veteran's cardiac abnormalities. An undated VA outpatient treatment report reflects assessments of cardiomyopathy and congestive heart failure. It was noted the Veteran had been recently diagnosed with congestive heart failure from an echocardiogram. The etiology was noted to be hypertension versus rate-related versus ischemia versus viral. It was stated regarding ischemia that it was unlikely considering the Veteran's minimal risk factors and no documented history of coronary artery disease, and extremely active lifestyle and no family history of ischemic heart disease. The Veteran had a VA examination in May 2016; the examiner diagnosed congestive heart failure and supraventricular arrhythmia. The Veteran concurred with his earlier reports of having experienced increased fatigue and occasional dizziness while cross country skiing and going to see a private doctor who diagnosed atrial fibrillation. The examiner did not diagnose IHD. The instead examiner opined that it was less likely than not that the Veteran's heart conditions were related to his service because there was no evidence of a heart condition when he separated from service. Furthermore, the Veteran had been an active participant until 2010 when he developed atrial fibrillation. The examiner again noted that the Veteran's work up did not reveal ischemic etiology or IHD. In June 2017, an addendum VA medical opinion was obtained. It was noted that the Veteran was being managed medically by VA for ongoing diagnoses of non-ischemic cardiomyopathy and chronic atrial fibrillation with subsequent echocardiograms demonstrating improved left ventricular ejection fraction up to 40-45 percent. The VA examiner then opined that the Veteran did not have a diagnosis of IHD or ischemic cardiomyopathy, and that the Veteran's non-ischemic cardiomyopathy was less likely than not related to service on a direct basis or as a result of his exposure to herbicide agents in Vietnam. With respect to the Veteran's claim for service connection for a heart disorder, he argues that his heart disorder is caused by "the exist[e]nce of residual Agent Orange dioxin's in my body." IHD is among the diseases for which a presumption of service connection has been established based on herbicide exposure under 38 C.F.R. § 3.309(e). Ischemic heart disease includes but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina. Id. The Board finds, however, that the Veteran does not have IHD. There is no evidence that he has been diagnosed with any of the conditions classified as IHD under § 3.309(e), including a myocardial infarction, atherosclerotic cardiovascular disease, or stable, unstable, or Prinzmetal's angina. He has not undergone coronary bypass surgery. The VA treatment records show diagnoses of global or tachycardia-induced cardiomyopathy, congestive heart failure, and atrial fibrillation. None of these diagnoses have been associated with IHD under § 3.309(e). Testing noted in April 2010 treatment records noted electrocardiogram showed no ischemic change. The VA examination reports of records also contain findings from VA examiners who reviewed the record and found that the Veteran did not have IHD. Finally, these findings are supported by the Veteran's treatment records. For example, his own healthcare provider concluded it was unlikely the he Veteran had IHD in view of minimal risk factors (history of hypertension and hyperlipidemia), no documented history of coronary artery disease, an extremely active lifestyle, and no family history of ischemic heart disease. The VA treatment records and VA examination reports of record constitute probative evidence that the Veteran's heart disorders are not classified as IHD, as they represent the informed conclusions of medical professionals based on objective testing and clinical assessment of the Veteran. The Veteran has not submitted any evidence to support his contention that he has IHD. The Board accords more weight to the findings of the medical professionals on this issue than to the Veteran's statements, as he is a layperson in the field of medicine and thus does not have the expertise to determine whether his heart conditions qualify as IHD, which is a medical determination that is too complex to be made based on lay observation alone. The Board acknowledges the Veteran's lay statements and contention that he has a heart disability that is related to his in-service herbicide agents exposure. The Veteran, however, is not competent to address the etiological question of whether he has a heart disability attributable to herbicide exposure, as this is a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As noted above, the competent (medical) evidence of record shows that none of the Veteran's currently diagnosed heart disorders are related to his service (to include his exposure to herbicide agents therein). Accordingly, presumptive service connection based on the Veteran's in-service herbicide exposure is not established, as he does not have IHD, and his diagnosed heart disorders are not included among the diseases qualifying for the presumption under § 3.309(e). There is no competent evidence suggesting that the Veteran's presumed exposure to herbicides during active service led to the development of his heart disorders many years later. This long period of time weighs against a relationship to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that a proper consideration for the trier of fact is the amount of time that has elapsed since military service in terms of whether a condition was incurred therein). Because the Veteran's heart disorder did not manifest during service or until many years after separation, service connection may not be established based on a chronicity in service or a continuity of symptoms after service, or on a presumptive basis for a chronic disease that manifests to a compensable degree within one year of separation. See 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). Accordingly, the Board finds that the preponderance of the evidence is against the claims of service connection a heart disorder (claimed as ischemic heart disease), and the claim must be denied. Tongue and lung disabilities The cysts and lung nodule for which he has been treated following service have not been presumptively linked to exposure to Agent Orange. Further, there is no competent evidence to show that cysts of the tongue or lung nodule were caused by such exposure. The Board notes that the Veteran reported he had a cyst removed from his tongue in 1975. He acknowledged that he has no record of the surgery, but asserted he had a slight scar on his tongue. The evidence fails to establish that any cyst of the tongue or back or neck or the lung nodule may be attributed to service, including exposure to Agent Orange. His lung nodule was first identified many years after service. In May 2016 the Veteran had a VA examination for his cyst, including sebaceous cyst. The Veteran reported having a cyst removed from his tongue around 1974. The examiner indicated the cysts were not related to Agent Orange or his service because it did not fit into a presumptive skin condition. In a June 2017 VA examination, the examiner indicated sebaceous cysts of the tongue are exceedingly rare and when an epidermoid cyst does occur on in the mouth, it is more likely to be at the base of the mouth (not on the tongue). The Veteran's records did not describe a cyst at the base of the mouth. The examiner concluded the diagnosis of sebaceous cyst of the tongue and its association with herbicide exposure was unsubstantiated based on the available information. In May 2016 the Veteran had a VA examination for his lung nodules. A June 2008 CT scan showed likely scarring in the left lower lobe with 3 small densities. A June 2010 CT scan showed 3 small densities described in 2008 appeared unchanged. The examiner found the conditions were unrelated to service, stating "The findings of nodules or densities on the radiographic tests do not qualify as a presumptive lung condition related to Agent Orange and, furthermore, there is no plausible temporal relationship between them and service timeframe." In a May 2017 VA examination the examiner found there was no clinical evidence that the Veteran's pulmonary nodules were caused by and related to his military including exposure to Agent Orange. The examiner explained that the Veteran's service entrance and separation examinations were normal, and that the Veteran was assigned to Ft. Lewis, Washington, which was not in an area where endemic fungi were found (which could present on imaging as benign lung nodules). The Board finds that the clinical evidence as to the etiology of the Veteran's tongue cyst and lung nodule is more probative than the Veteran's lay statements. The Board finds that the evidence does not support a finding of continuity of symptoms since service. The Veteran's service treatment records, including his service separation examination, are negative for tongue cyst or lung nodule. Post service, the evidence, including his statements, indicates that he has infrequently, but not continuously, been treated for cysts in various parts of his body (i.e., reported cyst removal from tongue several years after service). However, private treatment records dated from a medical clinic from 1976 to 1993 only show one removal of a sebaceous cyst of the neck several years after service (and service connection for a sebaceous cyst of the neck has since been granted). To the extent that the Veteran has reported that he had tongue cyst or lung nodules continuously since service, those statements are less than credible given the record as a whole, to include his separation examination reports, which are negative for a tongue cyst, as well as the subsequent (post-service) private and VA treatment records showing very infrequent treatment for tongue cysts, lung nodules, etc. The Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed cyst of the tongue or lung nodule. The Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of cyst and lung disabilities. The Board finds that such etiology opinions fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). ORDER Service connection for a heart disorder, to include atrial fibrillation, congestive heart failure, and non-IHD to include as due to Agent Orange exposure, is denied. Service connection for removal of a cyst of the tongue, to include as due to Agent Orange exposure, is denied. Service connection for a lung nodule, to include as due to Agent Orange exposure, is denied. ____________________________________________ A. ISHIZAWAR Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs