Citation Nr: 1802050	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  11-26 351A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).

2.  Entitlement to an evaluation greater than 10 percent for right knee degenerative joint disease (DJD).

3.  Entitlement to an evaluation greater than 10 percent for limitation of right knee flexion.

4.  Entitlement to an evaluation greater than 0 percent for scar, right knee surgery.

5.  Entitlement to service connection for ischemic heart disease for the purpose of retroactive benefits.


REPRESENTATION

Appellant represented by:	Disabled American Veterans
WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

C. Banks, Associate Counsel


INTRODUCTION

The Veteran had active duty from January 1968 to December 1969.   

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010, May 2011 and November 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  The Veteran and his wife testified in a videoconference hearing before the undersigned Veterans Law Judge in October 2017.

The Board notes that the Veteran withdrew his claim of entitlement to an increased evaluation of posttraumatic stress disorder (PTSD) by way of correspondence received in March 2015.  This matter, however, was discussed in the context of the October 2017 hearing and is referred back to the RO for appropriate action.

The issues of entitlement to increased evaluations of right knee DJD, limitation of right knee flexion, and a right knee scar; and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).





FINDING OF FACT

The competent evidence of record does not demonstrate ischemic heart disease.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for ischemic heart disease are not met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304, 3.305, 3.306, 3.307, 3.309, 3.310, 3.313 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination as to the Veteran's claim of entitlement to service connection for ischemic heart disease (IHD) for the purpose of retroactive benefits.  See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

II.  Relevant Laws and Regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be established for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that disease was incurred in service.  38 C.F.R. § 3.303(d).  Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of: (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372.

Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  38 U.S.C. §§ 1116; 38 C.F.R. § 3.307.  A veteran who served on land in Vietnam is presumed to have had such exposure.  Id.  If the Veteran was exposed to a herbicide agent (such as Agent Orange, for example) during active service, and the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied, certain diseases including ischemic heart disease will be service connected.  38 C.F.R. § 3.309(e).  

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006).  The evaluation of evidence generally involves a three-step inquiry.  First, the Board must determine whether the evidence comes from a "competent" source.  Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience.  Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Competent medical evidence is evidence that is provided by a person qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  38 C.F.R. § 3.159(a).  If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  After determining the competency and credibility of evidence, the Board must then weigh its probative value.  In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995).  Competency is a legal concept in determining whether medical or lay evidence may be considered, in other words, whether the evidence is admissible, as distinguished from weight and credibility, a factual determination going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).   After determining the competency and credibility of evidence, the Board must then weigh its probative value.  Caluza, 7 Vet. App. 498, 511-12.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the veteran.  38 U.S.C. § 5107(b).

III.  Facts and Analysis

The Veteran claims entitlement to service connection for ischemic heart disease, including coronary artery disease, which he claims is due to his exposure to herbicide agents.  His military personnel records show that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975.  Thus, he is presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure.  See 38 U.S.C. §§ 1116; 38 C.F.R. § 3.307.  However, as discussed above, presumed service connection due to herbicide exposure under 38 C.F.R. § 3.307 requires that the Veteran be diagnosed with one of the enumerated diseases under 38 C.F.R. § 3.309(e).  The Board notes that while ischemic heart disease is enumerated under 38 C.F.R. § 3.309(e), a review of all the medical records and lay statements associated with the record show that the Veteran was not diagnosed with any form of ischemic heart disease; rather, he was diagnosed in 2009 with cerebrovascular accident with left hemiparesis, which is not enumerated under this section.  Thus, the Board concludes that the Veteran is not entitled to presumptive service connection for a heart disability as secondary to herbicide exposure.

As also indicated above, however, certain chronic diseases may still be otherwise service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for cardiovascular disease) following discharge from service.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.  In this case, though, there is no probative evidence that the Veteran had any symptoms or manifestation of any heart disorders until about September 2009.  See, e.g., Medical Treatment Record/Discharge Summary dated in October 2009.  Furthermore, there is no evidence that the Veteran has in fact been diagnosed with ischemic heart disease, including coronary artery disease, as acknowledged by the Veteran at the October 2017 Board videoconference hearing.  As such, service connection based on manifestation to a compensable degree within one year after discharge from service is not warranted.

Furthermore, with respect to direct service connection, there is no evidence in the claims file of any nexus between any current heart disability that the Veteran has and his military service, to include any in-service injury or illness.  See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d at 1372.  None of the medical evidence of record speaks to any such association.  The Veteran has claimed, including in a letter received in June 2012, that he has ischemic heart disease as a result of his exposure to Agent Orange, but the Board finds that in order for such a diagnosis and opinion to be reliable, it must be made by one who is competent, as related to such matters (i.e., qualified through education, training, or experience to offer medical diagnoses, statements, or opinions of that type).  See 38 C.F.R. § 3.159(a).  Such statements by the Veteran are thus not competent medical evidence, in the absence of a showing of training or credentials.  In the absence of any other evidence indicating that the Veteran has ischemic heart disease or any other heart condition related to his exposure to Agent Orange or his military service, the Board finds that the preponderance of the evidence weighs against the claim, and it must be denied.


ORDER

Entitlement to service connection for ischemic heart disease for the purpose of retroactive benefits is denied.


REMAND

The Veteran stated at his October 2017 videoconference hearing that he was treating with, and being scheduled for a knee replacement surgery by, a private physician who we will refer to herein as Dr. C. F. who is with Arcis Healthcare in Columbia, South Carolina.  It does not appear that records from that facility have been obtained and associated with the Veteran's claims file.  On remand, they should be sought, obtained, and associated with the Veteran's claims file, if possible.

Further, the Veteran was last afforded a VA examination for his right knee-related disabilities (i.e., right knee DJD, limitation of right knee flexion, and a right knee scar) over three years ago, in 2014.  He has since assertedthat those disabilities have worsened.  See, e.g., Statement of Accredited Representative in Appealed Case received in March 2015.  Where a veteran asserts that a disability has worsened since his/her last VA examination, and the last examination is too remote to constitute a contemporaneous examination, a new examination is required.  See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991).  As such, the Veteran should be afforded a new VA examination for the purpose of addressing the current severity of each of those disabilities.

Finally, the Board finds that the issue of entitlement to TDIU is inextricably intertwined with the issues of entitlement to increased evaluations of right knee DJD, limitation of right knee flexion, and a right knee scar.  As such, the Board will defer adjudication of the issue of entitlement to TDIU until after completion of the additional development directed herein on the other aforementioned issues, including adjudication of the raised issue of entitlement to an increased evaluation for PTSD (as noted in the INTRODUCTION).

Accordingly, the case is REMANDED for the following action:

1.  Obtain copies of the complete updated VA and private records of all evaluations and treatment the Veteran received for his right knee DJD, limitation of right knee flexion, and a right knee scar, to include any such records from Arcis Healthcare in Columbia, South Carolina.  As needed, signed release forms for private records should be obtained.  All requests for records and responses must be associated with the claims, pursuant to the provisions of 38 C.F.R. § 3.159(c).

2.  After the above has been completed, schedule the Veteran for an appropriate VA examination to determine the current nature, extent, and severity of his service-connected right knee DJD, limitation of right knee flexion, and right knee scar.  The entire claims folder must be made available to and reviewed by the examiner.  All necessary tests should be performed, all findings should be reported in detail, and all opinions must be supported by a rationale.

In assessing the current nature, extent and severity of the Veteran's right knee DJD, limitation of right knee flexion, and right knee scar, the examiner is asked to address the extent to which the functional impairment caused by those conditions alone impairs the Veteran's ability to meet the demands of a job, whether sedentary or physical, and the timeframe in which such impairment arose.  All opinions and conclusions reached by the examiner should be thoroughly explained.

3.  The Veteran must also be afforded a VA mental health examination, with a psychiatrist or psychologist, to address the effects of his service-connected PTSD.  The examiner is requested to provide commentary as to the effect of this disability, in tandem with the other service-connected disabilities (as listed in a March 2015 rating decision), on the Veteran's ability to secure and follow a substantially gainful occupation.  All opinions and conclusions reached by the examiner should be thoroughly explained.

4.  The Veteran's raised claim for an increased evaluation for PTSD should be addressed in a new rating decision, of which the Veteran must be informed of his rights and responsibilities in perfecting an appeal.

5.  After completing the above actions, and any other indicated development, the issues of entitlement to increased evaluations of right knee DJD, limitation of right knee flexion, and a right knee scar; and entitlement to TDIU must be readjudicated.  If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative, and after they have had an adequate opportunity to respond, the appeal must then be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on this matter.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This appeal 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. §§ 5109B, 7112 (2012).



______________________________________________
A. C. MACKENZIE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs