Citation Nr: 1802961 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-00 222 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Medical and Regional Office (RO) Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for disabilities of the heart, claimed as due to exposure to herbicides. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to October 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision that denied service connection for ischemic heart disease. The Veteran timely appealed. In June 2013, the Veteran testified during a hearing before the undersigned at the RO. During the hearing, the undersigned granted the Veteran's request for a 60-day abeyance to submit additional evidence or argument directly to the Board. In July 2013, the Veteran submitted additional evidence to the Board. The Board accepts that evidence for inclusion in the record. See 38 C.F.R. § 20.709 (2017). Consistent with the Veteran's testimony and the record, the Board recharacterized the appeal as encompassing the issue on the title page. The U.S. Court of Appeals for Veterans Claims has held that the Board must broadly construe claims, and consider other diagnoses for service connection when the medical record so reflects. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In January 2015 and in May 2017, the Board remanded the matter for additional development. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's active service involved duty or visitation in the Republic of Vietnam during the Vietnam era; hence, he is presumed to have been exposed to Agent Orange in active service. 2. Implanted cardiac pacemaker is not shown to be casually or etiologically related to any disease, injury, or incident in service; and cardiovascular-renal disease was not manifested during active service or within the first year after separation. 3. Ischemic heart disease with angina manifested to a compensable degree post-service. CONCLUSIONS OF LAW 1. Implanted cardiac pacemaker was not incurred in active service; and cardiovascular-renal disease may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). 2. Ischemic heart disease with angina is presumed to have been incurred in active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). These duties have been satisfied in this appeal. All available records identified by the Veteran as relating to his claim have been obtained, to the extent possible. Reports of VA examinations in connection with the claim on appeal are of record and appear adequate. The opinions expressed therein are predicated on a substantial review of the record and consideration of the Veteran's complaints and symptoms. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained. Given these facts, there is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C. § 5103A(a)(2). II. Analysis Service connection is awarded for disability that is the result of a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. Id. The Federal Circuit has held that section 3.303(b) applies only to those chronic conditions specifically listed in 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Notably, cardiovascular-renal disease is considered chronic and a presumptive disease. See 38 U.S.C. § 1101. The Veteran seeks service connection for disabilities of the heart which he believes are due to exposure to herbicides in active service. VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected if they manifest to a compensable degree at any time after service. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.307(a). 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) is listed among the diseases presumed to be associated with Agent Orange exposure. 38 U.S.C. § 1116(a)(2)(H); 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). Here, the Veteran's active duty included service in the Republic of Vietnam from September 1968 to April 1970; hence, he is presumed to have been exposed to herbicides in service. See 38 U.S.C. § 1116(f) (2012). The question in this case is whether the Veteran has developed a presumptive heart disability, which manifested to a compensable degree at any time after service. If so, service connection may be granted on the basis that certain disabilities are presumed to be the result of in-service Agent Orange exposure. The Veteran's enlistment examination in May 1966 showed a normal heart on clinical evaluation. Clinical evaluation at the time of a June 1971 medical board examination prior to the Veteran's separation from active service also showed a normal heart. VA records show that the Veteran was hospitalized in April 1994 due to increasing chest pressures that woke him up from sleep. The provisional diagnosis then was unstable angina. Following further diagnostic testing and treatment, the Veteran was discharged in May 1994 in stable condition without any chest pain, arrhythmias, or shortness of breath. Diagnoses in May 1994 included chest pain episode, noncardiac origin, etiology uncertain; and sinus bradycardia. An electrocardiogram in May 1994 revealed mild left ventricular hypertrophy. Chest X-rays taken in February 2003 essentially were normal for age, and a stress test at that time was interpreted as satisfactory. A myocardial perfusion scan in February 2003 was consistent with inferoapical ischemia. Further diagnostic testing revealed normal left ventricular function, mild calcification of the aortic valve, and essentially normal Doppler. VA records show an assessment of chest pain/angina in August 2003, and that a coronary angiogram was planned. The results of the August 2003 coronary angiogram revealed normal coronary arteries, normal left ventricular function, and sinus bradycardia. VA records, dated in October 2007, show a history of coronary artery disease. The Veteran then wore a Holter monitor, revealing appropriate heart rate response with activity. The Veteran also underwent a coronary arteriography in October 2007, which identified no significant coronary artery disease. In November 2009, he underwent exercise stress testing. The estimated peak oxygen consumption was 5.2 METs; and the test was terminated at 3 minutes 32 seconds due to dyspnea, fatigue, and presyncope. Results were positive for stress-induced ischemic changes. Private records show that the Veteran underwent a permanent pacemaker implantation in April 2010. VA records show that the Veteran was hospitalized for observation for chest pains in June 2010. The impression at the time was atypical noncardiac chest pains, possibly some factor related to pulmonary; no further cardiac evaluation was indicated. In December 2010, the Veteran was treated for recurrent dyspnea on exertion and fatigue, which were not considered cardiac in origin. The Veteran denied both chest pain at rest and shortness of breath at rest. X-rays taken for cardiac evaluation in February 2011 were normal. The report of a February 2011 VA examination shows no diagnosis of ischemic heart disease, and no finding of congestive heart failure. The examiner also opined that the implanted cardiac pacemaker was not as likely as not due to ischemic heart disease. The Veteran had denied experiencing any symptoms of dyspnea, fatigue, angina, dizziness, or syncope with any level of physical activity. Although he had prior complaints of shortness of breath and chest pain with shoveling snow, several investigations as to cause found nothing. The examiner noted that a tilt table test was positive, resulting in a pacemaker being implanted. The examiner reviewed the Veteran's cardiac history, and noted the following: a coronary angiogram in August 2003 showed normal coronary vasculature and no indication of stenosis in any major vessel; a coronary angiogram in October 2007 was normal; an echocardiogram in September 2009 revealed no significant valvular disease; a regadenoson myocardial perfusion study in January 2010 revealed no ischemia; and a coronary angiography in January 2010 was normal. Based on a review of the medical records and examination of the Veteran, the February 2011 examiner opined that there was no finding of ischemic heart disease; and indicated that the Veteran took nitroglycerin tablets for chest pain. VA records, dated in September 2011, show that the Veteran continued to have symptoms of shortness of breath with exercise. In June 2013, the Veteran also testified that he took a nitroglycerin tablet every now and then for chest pain. VA records, dated in June 2013, show that the Veteran's last episode of chest pain was several days ago; and that he continued to get chest pain with increased activity. The assessment then was exertional chest pain with recent cardiac test showing mild ischemia. In August 2013, the Veteran continued to have dyspnea and chest pain with exertion. Following evaluation, the assessment was angina with positive stress test; and the Veteran was referred for a cardiology consultation. In October 2013, he presented with stable angina and underwent another cardiac catheterization. The report of a June 2015 VA examination reveals a diagnosis of an implanted cardiac pacemaker. The examiner reviewed the Veteran's medical history, and noted a significant cardiac history. The examiner opined that none of the Veteran's heart conditions qualifies within the generally accepted medical definition of ischemic heart disease. The examiner indicated that the Veteran had a cardiac arrhythmia, and the pacemaker was for sick sinus syndrome and sinus brady. The examiner also reasoned that the limitation in METs level was due to multiple medical conditions, including the heart; and opined that the multiple conditions could at least as likely as not have an effect on subjective reports of dyspnea and chest pain. As such, the examiner suggested that the ejection fraction reported on a recent echocardiogram was more likely a better representation of the Veteran's cardiac function. The June 2015 examiner did acknowledge prior notations of ischemia and abnormal stress tests, which resulted in further diagnostic testing; and opined that the Veteran was less likely than not found to have ischemic heart disease due to active service and exposure to herbicides. In support of the opinion, the examiner reasoned that there was an absence of demonstrated coronary artery disease by coronary angiography on three occasions. In a May 2017 addendum, the examiner opined that the Veteran's implanted cardiac pacemaker was less likely than not related to his active service, including exposure to herbicides. In support of the opinion, the examiner reasoned that the implanted cardiac pacemaker was more likely related to sick sinus syndrome and disruption of the sinoatrial node as a result of disorders in automaticity, conduction, or both; and explained that ischemic heart disease had not played a role in the etiology of the Veteran's sick sinus syndrome and pacemaker implantation. The examiner also indicated that the Veteran's sick sinus syndrome and pacemaker implantation first manifested in 2010, many years after the Veteran's separation from active service in 1971. In this case, the evidence is against a finding that an implanted cardiac pacemaker was incurred in active service or within the first year after separation. In particular, the normal findings in service treatment records establish that a heart disability was not "noted" at any time during active service; and that sick sinus syndrome and implanted cardiac pacemaker subsequently were identified long after service. Clearly, the Veteran did not have characteristic manifestations sufficient to identify the disease entity during service or within one year. 38 C.F.R. § 3.303. The Board finds credible the May 2017 addendum, which explained that an implanted cardiac pacemaker was likely due to sick sinus syndrome, and not associated with ischemic heart disease. Here, the Veteran is competent to testify as to symptoms he has experienced that are capable of lay observation, such as chest pain. However, the lay evidence must be compared with the medical evidence, which has not attributed an implanted cardiac pacemaker to any in-service disease or injury, to include exposure to herbicides. The Board finds the medical evidence to be far more probative and more credible than the lay evidence. To the extent that there is chest pain, it has not been associated with an implanted cardiac pacemaker. For reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for an implanted cardiac pacemaker. With regard to ischemic heart disease, the Board finds that the medical evidence is conflicting as to the presence of a current disability. Both the February 2011 and June 2015 examiners have opined that the Veteran does not have ischemic heart disease because such disease was not identified by coronary angiography on three occasions. To the contrary, however, other diagnostic testing was consistent with ischemia. The Board also notes current evidence of angina and recent assessments in 2013; and recognizes the Court's decision in Romanowsky v. Shinseki, 26 Vet. App. 303 (2013), which held that a claimant satisfies the current disability threshold when a disability exists at the time his or her claim was filed, even if the disability resolves prior to VA's adjudication of the claim. Moreover, the Board finds the Veteran's testimony credible and supported by medical evidence showing ongoing complaints of chest pain on exertion and angina. Lastly, the diseases listed at 38 C.F.R. § 3.309(e) generally shall have become manifest to a degree of 10 percent or more disabling at any time after service, unless otherwise noted. The diagnostic criteria applicable to evaluating diseases of the heart are found in 38 C.F.R. § 4.104. Several diagnostic codes relate to the cardiovascular system; in this regard, primarily, a 10 percent rating is warranted for diseases of the heart where, (1) stress test results demonstrate, generally, a workload of greater than 7 METs (metabolic equivalents) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness or syncope, or; (2) when continuous medication is required. For all diseases of the heart, the rating criteria provide that one MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 millimeters per kilogram of body weight per minute. 38 C.F.R. § 4.104, Note (2). In this case, the evidence includes findings of angina since 1994; and reflects a current treatment plan that includes taking medication, as needed, for chest pain. An exercise test was conducted in November 2009, where a METs level of 5.2 was indicated. In this regard, the June 2015 examiner noted that the limitation in METs level was due to multiple medical conditions, including the heart. We also note a report of no significant coronary artery diseas rather than no disease with another report of stress induced ischemia. We are unable to find that the examiners noting ischemia are less competent than the examiners finding that there is no disease. At best, the record is in equipoise. Accordingly, the Board finds that the Veteran has developed a presumptive heart disability, which manifested to a compensable degree after service. Hence, service connection is warranted for ischemic heart disease with angina. In reaching this decision, the Board has extended the benefit of the doubt to the Veteran. 38 U.S.C. § 5107. ORDER Service connection for implanted cardiac pacemaker is denied. Service connection for ischemic heart disease with angina is granted. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs