Citation Nr: 1803446 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 12-08 398 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a heart disorder, to include coronary artery disease, to also include as due to toxic herbicide exposure. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD E. Vample, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to October 1971, to include a tour of duty in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland Oregon. In June 2015, the Veteran was scheduled to testify before a Veterans Law Judge. However, the Veteran cancelled his Board hearing. As such, the Veteran's request for a hearing is deemed withdrawn. See 38 U.S.C. § 20.703 (2017). The Board remanded the Veteran's claim for additional development in November 2015. After further development, the claim is ready for adjudication FINDINGS OF FACT 1. The Veteran served in the Republic of Vietnam. 2. The medical evidence of record reveals that the Veteran has been diagnosed with coronary artery disease, which is an enumerated presumptive disease associated with herbicide agent exposure. 3. The Veteran is unable to maintain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for ischemic heart disease and atherosclerotic disease as due to herbicide agent exposure have been met. 38 U.S.C. §§ 1101, 1110, 1116, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA Duty to Notify and Assist VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In light of the fully favorable decision as to the issue(s) of service connection for a heart disorder, to include coronary artery disease, to also include as due to toxic herbicide exposure and TDIU, no further discussion of compliance with VA's duty to notify and assist as to that issue(s) are necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Service Connection The Veteran asserts that his heart disorder is related to active service. VA regulations state that a veteran who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, 2,4-Dichlorophenoxyacetic acid or 2,4,5-Trichlorophenoxyacetic acid, and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6); 3.309 (2017). Notably, these were the key compounds found in the tactical herbicides used during that time, with "Agent Orange" being the most common. Service connection is warranted for a veteran who has been exposed to toxic herbicide agent during active military service (subject to the requirements of 38 C.F.R. § 3.307(a)) for diseases such as chloracne or other acneform diseases consistent with chloracne, Type 2 diabetes, Hodgkin's disease, non-Hodgkin's lymphoma, porphyria cutanea tarda, multiple myeloma, prostate cancer, soft-tissue sarcomas, early-onset peripheral neuropathy, Parkinson's disease, B-cell leukemias, respiratory cancers and, as is relevant here, ischemic heart disease. 38 C.F.R. § 3.309(e). Ischemic heart disease is among the diseases associated with herbicide exposure for purposes of this presumption, and includes 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). 38 C.F.R. § 3.309(e); 75 Fed. Reg. 53202, 53216 (Aug. 31, 2010). 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. 38 C.F.R. § 3.309 (e), Note 3. As the Veteran served in the Republic of Vietnam during the period beginning on February 6, 1969, and ending on September 17, 1970, and in the absence of affirmative evidence to the contrary, he is presumed to have been exposed to herbicide agents during his Vietnam service. See 38 C.F.R. § 3.307(a)(6)(iii). The Veteran has verified service in the Republic of Vietnam during the applicable timeframe when herbicides were used and, as such, exposure to herbicides will be presumed. The relevant question, therefore, is whether the Veteran has a current diagnosis of ischemic heart disease or some other heart disability that was incurred in or is otherwise related to service. A review of the Veterans service treatment records (STRs) are silent for any heart conditions and his September 1971 separation examination indicates a normal heart. However, the Veteran's medical treatment records in 2007 note a diagnosis of noncritical coronary artery disease and an X-ray revealed cardiomegaly. The medical provider noted an abnormal echocardiogram that showed an ejection fraction estimated to be 10-15 percent with no real improvement over the past six months. The results from an angiogram dated August 22, 2007 revealed very mild nonocclusive coronary disease. A February 2008 VA examination showed an impression of atherosclerotic coronary artery disease. Additionally, a November 2011 VA examiner opined that the etiology of the Veteran's atherosclerosis was coronary artery disease. Furthermore, treatment records from Portland VA in 2014 reveal a diagnosis of atherosclerotic disease of the aorta. Given the evidence of record, the Board finds that although the evidence is not unequivocal, it has nonetheless placed the record in relative equipoise with regard to diagnosis. The Board can find no adequate basis to reject the evidence that is favorable to the Veteran based on a lack of rationale or expertise of the clinician. Moreover, the evidence against the Veteran's claim, including a 2017 VA examination, relies primarily on a chart review and does not address the multiple diagnoses of coronary artery disease in the Veteran's medical records. Also, the opinions against the Veteran's claim do not sufficiently address and rule out the multiple assessments of atherosclerosis. Thus, the Board finds that evidence is at the very least evenly balanced as to whether the Veteran has coronary artery disease. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Further, the Veteran is presumed to have been exposed during service to an herbicide agent due to his conceded in-country service in Vietnam during the requisite time period. See 38 C.F.R. § 3.307(a)(6)(iii). Accordingly, the Veteran is entitled to service connection for coronary artery disease on a presumptive basis as due to herbicide exposure. 38 U.S.C. §§ 1116, 5107; 38 C.F.R. §§ 3.102, 3.307(a)(6); 3.309(e). TDIU The Veteran claims that the combined effect of his service connected disabilities prevent him from obtaining and retaining gainful employment. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow "substantially gainful employment" as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. In the present case, the Veteran is service connected for posttraumatic stress disorder (PTSD) (70 percent from January 15, 2008) and diabetes mellitus type II (20 percent from December 27, 2007). Therefore, the Veteran's combined total rating is 80 percent from January 15, 2008. Based on these combined totals, the Veteran meets the schedular criteria for a TDIU from January 15, 2008 onwards. After a review of the evidence, the Board determines that TDIU is warranted. As an initial matter, the Board notes that the 2008 VA examiner opined that the Veteran would certainly be considered unemployable, if not with his heart but just on the basis of chronic obstructive pulmonary disease. Additionally, a 2011 VA examiner opined that the totality of the Veteran's problems including chronic heart failure, alcoholism and cardiomyopathy would only allow sedentary work. As the Veteran is not service connected for the above-listed conditions, the Board cannot take them into consideration when adjudicating the Veteran's TDIU claim. The Veteran's TDIU application reflects that he became too disabled to work in August 2007. A November 2008 VA examiner noted that the Veteran's PTSD would impact employment due to his issues of anger, depression, problems with lack of trust, and hypervigilance. The November 2011 VA examiner stated that the symptoms attributable to the Veteran's PTSD include depressed mood, anxiety, flashbacks 1-2 times per week and difficulty adapting to stressful circumstances, including work or worklike settings. The examiner noted that the Veteran suffers from severe social impairment, given his degree of social isolation and his inability to be affectionate towards others. The examiner further noted that the Veteran suffers from severe occupational impairment given his inability to work around others. Additionally, the examiner opined that the Veteran appears to be unemployable due to the combination of his psychiatric and physical disabilities. The Veteran's treating physician at White City VAMC opined that it is likely that the Veteran's heart disorder would not change markedly as his echocardiogram has shown no real improvement over the past six months and he would certainly be considered unemployable. In regard to the Veteran's service-connected diabetes mellitus, an April 2017 VA examiner opined that the Veteran's diabetes mellitus did not cause any significant functional impairment nor render him unable to secure and maintain substantially gainful employment of either physical or sedentary nature. However, the Board finds that the Veteran's severe PTSD disability combined with his heart disorder warrants a finding of unemployability. Accordingly, entitlement to a TDIU is granted. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. ORDER Service connection for a heart disorder, to include coronary artery disease, to also include as due to toxic herbicide exposure is granted. TDIU is granted. ____________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs