Citation Nr: 1805096 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 08-37 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a cardiovascular disability, to include coronary artery disease, dilated cardiomyopathy without ischemia, coronary artery disease, cardiac arrhythmia, hypertension, a heart murmur, and valvular insufficiency. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from December 1965 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In November 2014, March 2016, and April 2017, the Board remanded the Veteran's claim for further development and consideration. Based on the completion of the requested development, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the November 2014 Board determination denied entitlement to service connection for ischemic heart disease, while remanding the issue of entitlement to service connection for a heart disability other than ischemic heart disease. The basis for the denial was that the Veteran did not have a diagnosis of ischemic heart disease. The Board acknowledges that the foregoing was not appealed by the Veteran; however, based on the evidence of record received since the time of the Board's denial, the fact that the issue of entitlement to service connection for a heart disability again is before the Board, and the arguments of the Veteran's representative, the Board has recharacterized the issue as noted above. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. FINDINGS OF FACT 1. Coronary artery disease is attributable to service. 2. A heart disability other than coronary artery disease was not manifest in active service or within one year of separation and is not otherwise related to any period of active service. CONCLUSIONS OF LAW 1. Coronary artery disease is attributable to in-service herbicide exposure. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309 (2017). 2. A heart disability other than coronary artery disease was not incurred in or aggravated by active service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist As an initial matter, the Board acknowledges that in a December 2017 statement the Veteran's representative argued that a remand was required because private medical treatment records prior to 2007 were missing. The Board notes that private medical records prior to 2007 have been associated with the claims file, as discussed in prior Board remands and below. Moreover, in response to letters requesting authorization to obtain records regarding his heart claim the Veteran submitted VA Forms 21-4142 in April 2010 and February 2011 noting private treatment for his heart specifically only from 2007 and thereafter. In addition, the Veteran has been asked on multiple occasions to provide authorization for all relevant private treatment records and/or to directly submit the records to VA (as recently as in a July 2017 letter) and the Veteran has provided multiple private records and/or authorizations to obtain the private medical records, which VA has done. As such, the Board finds no basis to remand the claim to again request that the Veteran provide additional records. Neither the Veteran nor his representative otherwise has identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). There is a one year presumption for cardio-vascular renal disease. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). In addition, 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, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C. § 1116(f) (2012); 38 C.F.R. § 3.307(a)(6)(iii) (2017). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases 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; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Such diseases include 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 Prinzemetal's angina). 38 C.F.R. § 3.309(e). Ischemic heart disease associated with herbicide agent exposure in service for VA presumptive service connection purposes does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. See id, Note 2. The Board notes, that the Federal Circuit has held that a claimant is not precluded from establishing service connection for a disease averred to be related to herbicide exposure, as long as there is proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has ischemic heart disease due to exposure to herbicides during his service in Vietnam. In addition, he contends that his other heart problems are due to his active service. Service personnel records show that the Veteran served in the Republic of Vietnam from September 1966 to September 1967. Prior to service, an October 1965 private treatment record indicated that the Veteran had a heart murmur that was found in September 1963 during a routine sports physical examination, but was felt be clinically insignificant. In addition, since then the murmur had become fainter. The record noted that thereafter the Veteran had been examined multiple times without the murmur being noted. The Veteran denied shortness of breath or chest pain. There was no history of rheumatic fever and the Veteran had not been hospitalized for a serious illness. There was noted to be a negative chest x-ray in September 1965, but he had never had an EKG. On examination, the heart was not enlarged and there was a regular rhythm, but there was an audible grade II of VI murmur that appeared loudest over the aortic valve and was transmitted into both sides of the neck. The murmur was accentuated by exercise and expiration. There was no sign of congestive heart failure and an EKG was normal. The physician indicated that the murmur was somewhat suggestive of an abnormality of the aortic valve, perhaps a bicuspid aortic valve or even a slight degree of subaortic stenosis. But the murmur was not producing any symptoms or abnormalities in cardiovascular physiology and no treatment or further studies were necessary at that time. The physician felt that the murmur was too loud in the neck to be entirely innocent, "but I know of at least one patient that I have had like this with an identical murmur, who was symptomatic, and who had cardiac catheterization at Charlottesville with angiogram and absolutely nothing was found." The Veteran's service treatment records include a December 1965 service treatment record included the Veteran's report of the existence of a heart murmur. He had experienced pains in his chest that started 1 to 2 years previously with increased activity. On examination, the Veteran had a normal sinus rhythm and there was no murmur. The heart did not appear enlarged. The Veteran was directed to return in a few days for x-ray and an EKG. X-rays in January 1966 showed early pneumonitis. Additionally, the Veteran's separation examination in September 1967 noted that the Veteran's heart was normal. In September 1993 and November 1994, the Veteran's heart was noted to be regular. In December 1995, June 1997, October 1998, and November 1998, the Veteran's heart was found to have a regular rate and rhythm without murmur. A December 2002 private treatment record during treatment for sinusitis, cough, anxiety, and migraine headaches noted a grade I to II out of VI soft, low systolic murmur at the right upper sternal border. January 2004, April 2004, October 2004, May 2005, July 2005, January 2006, and May 2006 private treatment records during visits for problems that included sinus infection, headaches, and dermatitis included normal findings for the heart and there was no finding of murmur, ectopy, irregular rhythm, irregular rate, or edema. June 2006 and July 2006 chest x-rays showed a normal heart. In July 2006, the Veteran was brought to the emergency room with problems that included dizziness. He denied shortness of breath or chest pain. On testing, the Veteran had a regular heart rhythm. Due to the dizziness he was fitted with a Holter monitor, which was consistent with EKG findings of bradycardia with PVCs. In January 2007, the Veteran had a regular heart examination without significant murmur. In March 2007, the Veteran reported weakness, dizziness, and a slow pulse for the previous year. The Veteran denied a history of coronary artery disease, chest pain, angina, paroxysmal nocturnal dyspnea, or myocardial infarction. On examination, heart sounds were normal, without evidence of murmur. There was a finding of cardiac arrhythmia with premature ventricular contractions. The etiology of the dizziness was undetermined. An April 2007 echocardiogram was essentially normal. A May 2007 EKG showed bradycardia with PVCs and was suggestive of left ventricular hypertrophy. A stress test was negative. There was no evidence of ischemia or infarction, but the left ventricle was severely dilated that might be due to cardiomyopathy. Subsequent treatment records included a diagnosis of aortic valve insufficiency. A June 2007 private record noted impressions that included cardiomyopathy, mitral and aortic valve insufficiencies, and multiple premature ventricular contractions. Another record documented sick sinus node, hypertensive cardiovascular disease, coronary artery disease, and mitral and tricuspid valve insufficiency and premature ventricular contractions. Based on these problems, the Veteran was fit with a cardiac pacemaker. The Veteran underwent a VA examination in March 2008. The examiner noted review of the claims file. The Veteran reported heart problems beginning in 2006. The Veteran went to the emergency room in July 2006, at which time he was instructed to see a cardiologist; however, he was unable to see a cardiologist until 10 months later. The Veteran had problems with tiredness and low energy. The June 2007 insertion of a pacemaker helped the symptoms somewhat, but he still had good days and bad days. On examination, there was no evidence of a heart murmur, congestive heart failure, or history of cardiac trauma. The examiner diagnosed dilated cardiomyopathy for which he had had a pacemaker inserted. The Veteran contended that VA was negligent in not diagnosing the heart disability sooner, which resulted in the need for a pacemaker and consequent financial stress on the Veteran. In September 2009, the Veteran was noted to have mitral valve insufficiency and transient ischemic attacks, abated. Other records also note aortic valve insufficiency, sick sinus node with a pacemaker, cardiomyopathy, and premature ventricular contractions. The Veteran underwent another VA heart examination in April 2010. The examiner noted review of the claims file. The Veteran claimed ischemic heart disease, but the examiner noted that there was no documentation of ischemic heart disease in the medical records. On examination, there was no evidence of congestive heart failure or pulmonary hypertension. The examiner concluded that the Veteran did not have ischemic heart disease. In support of his claim, in February 2011 the Veteran submitted an Ischemic Heart Disease (IHD) Disability Benefits Questionnaire by his private cardiologist. The cardiologist concluded that the Veteran had ischemic heart disease. The cardiologist noted diagnoses of stable angina (413.9), sinoatrial node dysfunction (427.81), aortic valve disorder (424.1), and malignant hypertensive heart disease with heart failure (402.01). (The cardiologist also listed code 435.4 or 435.9.) The cardiologist indicated that the placement of the cardiac pacemaker was due to the IHD. The Veteran was afforded a VA heart examination in June 2011. The examiner indicated that the Veteran did not have ischemic heart disease. There was no evidence of congestive heart failure or cardiac hypertrophy or dilation. As to the diagnosed dilated cardiomyopathy, it was less likely than not that it was caused by or the result of ischemic heart disease. The rationale was that dilated cardiomyopathy was a condition in which the heart became weakened and enlarged and could not pump blood efficiently. It was the most common form of non-ischemic cardiomyopathy and although in many cases no cause (etiology) was apparent, dilated cardiomyopathy was probably the result of damage to the myocardium produced by a variety of toxic, metabolic, or infectious agents. Other potential causes included thyroid disease, stimulant use, and chronic uncontrolled tachycardia. Many causes of dilated cardiomyopathy, however, were from unknown causes. Recent studies had shown that those with an extremely high occurrence of premature ventricular contractions could develop dilated cardiomyopathy. Again, the medical professional reiterated that there was no evidence of ischemic heart disease, as there was no cardiac catheterization showing blockage. The Veteran's problems seemed to be electrical in nature, as evidenced by the insertion of a pacemaker. Multiple private treatment records from 2014 through the present document a diagnosis of coronary artery disease, angina pectoris, mitral valve insufficiency, peripheral vascular disease with claudication, and sick sinus node with pacemaker. The Veteran was afforded a VA examination in April 2016. The examiner noted review of the claims file and medical records. There was a diagnosis of dilated cardiomyopathy from 2007. The Veteran denied a history of myocardial infarction, coronary artery disease, cardiac catheterization, or taking nitroglycerin under the tongue for chest pain. He reported quitting smoking in the 1980s (after smoking 1 pack per day for 30 years), but he did chew tobacco. The examiner indicated that the etiology of the dilated cardiomyopathy was unknown. There was no history of congestive heart failure, arrhythmia, or heart valve conditions. On examination, the Veteran had regular rhythm and heart sounds. A May 2015 echocardiogram was normal. The examiner concluded that the heart disability was less likely than not incurred in or caused by service. The rationale was that a review of medical literature about dilated cardiomyopathy showed that it was characterized by dilation and impaired contraction of one or both ventricles. Dilated cardiomyopathy could be caused by a variety of disorders, but in about half of cases no etiology could be determined. Other causes included myocarditis, ischemic heart disease, infiltrative disease, peripartum cardiomyopathy, hypertension, HIV, connective tissue disease, substance abuse, and doxorubicin. Based on the medical literature, the examiner concluded that the cause of the Veteran's dilated cardiomyopathy was unknown, as there was insufficient studies showing a relationship between service and cardiomyopathy when it was not ischemic in nature. The examiner concluded that there was no evidence of a relationship between herbicide exposure or other incident of service and the Veteran's heart problems. An August 2017 VA medical opinion is of record. The reviewing medical professional noted review of the claims file and medical records. In response to the Board's query as to whether there was clear and unmistakable evidence that a heart murmur preexisted service, the physician noted that in December 1965 and January 1966 the Veteran complained of chest pain, but x-rays showed early pneumonitis and no evidence heart murmur. There was no documented EKG of record during service. The Veteran was diagnosed with cardiomegaly in 2007. The physician concluded that it was more likely that the in-service complaints of chest pain were due to the early pneumonitis than a heart murmur or other heart disability. As the heart examination was normal during service, the question of a preexisting heart disability "does not arise." As noted in the prior April 2016 VA examination report dilated cardiomyopathy could be caused by a variety of disorders, but half the time no cause could be determined. As an initial matter, the Board notes that the Veteran had service in the Republic of Vietnam during the applicable time period for when herbicide exposure may be presumed. Ischemic heart disease is presumed to be based on that herbicide exposure. The Board notes that there is conflicting evidence of record as to whether the Veteran has ischemic heart disease, specifically coronary artery disease. That said, the conflicting evidence of ischemic heart disease is from multiple years ago and the Veteran's private treatment records in the past few years consistently diagnose coronary artery disease. The negative opinion during this time was based, in part, on the Veteran's representation that he had not been diagnosed with coronary artery disease, which clearly is incorrect. As there is a relatively equal balance of evidence for and against the claim, the Board will afford the Veteran the benefit of the doubt and finds that entitlement to service connection for coronary artery disease is warranted based on presumptive exposure to herbicides in Vietnam. As to the remaining heart disabilities on appeal, the Board concludes that the preponderance of the evidence is against finding that such disabilities were incurred in or are otherwise related to service, to include in-service herbicide exposure. As to the heart murmur that was diagnosed prior to service and noted on several occasions after service, given the August 2017 VA medical opinion and the service treatment records showing no evidence of a heart murmur at entrance or during service, the Veteran will be presumed to have entered service in sound condition. 38 U.S.C. § 1111 (2012). In reaching the conclusion that the heart disabilities other than coronary artery disease were not incurred in or otherwise related to service, the Board finds the above medical opinions of significant probative value. In each case (other than as discussed in prior Board remands), the medical professional reviewed the claims file and considered the Veteran's contentions but concluded that the heart problems were unrelated to service, to include as a result of herbicide exposure. The rationale noted that the medical literature did not provide a link between herbicide exposure and the Veteran's specific heart disabilities (other than the coronary artery disease discussed above). In addition, the Veteran was not diagnosed with a heart disability until 2007, multiple decades after service, and his related heart problems began approximately 1 year prior to that diagnosis. The conclusions were fully explained and consistent with the evidence of record. As to the Veteran's efforts to link any such heart disabilities to service, including herbicide exposure during service in Vietnam, he certainly is competent to report observable symptoms, but the Board finds the opinions of the competent medical professionals to be the most probative evidence of record as to any relationship between such heart disabilities and service, including herbicide exposure. The Board finds the Veteran's contentions particularly problematic given that there is no continuity of symptoms from service and in light of the complexity of linking herbicide exposure to the current heart disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For these reasons, the Board finds the medical opinions of record to be of greater probative weight. Finally, there is no indication that these heart disabilities were caused or aggravated by the coronary artery disease. As such, entitlement to service connection on a secondary basis is not warranted. In light of the foregoing, the Board finds that entitlement to service connection for coronary artery disease is warranted on a presumptive basis, but that the preponderance of the evidence is against granting entitlement to service connection for any other heart disability and that the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for coronary artery disease is granted. Entitlement to service connection for a cardiovascular disability other than coronary artery disease is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs