Citation Nr: 1805864 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 13-35 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a heart disability, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board remanded this matter in June 2015 for a new VA examination, which was accomplished in October 2015. In November 2015, the RO issued a Supplemental Statement of the Case. FINDING OF FACT The Veteran does not have a current heart disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veteran's Claims Assistance Act (VCAA) defines the VA's obligations to notify the Veteran of the evidence needed and the assistance the VA will provide in substantiating his claim. Upon receipt of a substantially complete application, the VA must notify the claimant and any representative of any information, medical evidence, or lay evidence to VA that is necessary to substantiate the claim. 38 U.S.C. §§ 5103, 5103A, 5107; Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 C.F.R. § 3.159. A July 2011 letter informed the Veteran of the elements of service connection and of his and the VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. Thus, VA has satisfied its notice obligations. The duty to assist also requires the VA to assist Veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. In this case, the Veteran's claims file includes the Veteran's available service treatment records, private medical records, and VA medical records. The record also confirms the Veteran receives Social Security disability benefits. In October 2015, the RO asked the Veteran to indicate whether his Social Security Administration (SSA) disability benefits involved his claimed heart condition. However, the Veteran did not respond. Given the Veteran's failure to respond, the relevance of the Veteran's SSA records have not been established. See 38 U.S.C. § 5103A (2012); Leatherberry v. Nicholson, 21 Vet. App. 419, 430 (2006) ("There is no absolute requirement to secure all SSA documents in the first instance; only relevant records need be obtained."); See also Goltz v. Shinseki, 590 F. 3d 1317, 1323 (Fed. Cir. 2010) (holding that the Board did not err in finding that VA satisfied its duty to assist despite not obtaining SSA records because the appellant did not make a "specific allegation" that gave rise to "a reasonable belief" that SSA records were relevant.) Accordingly, despite not obtaining the Veteran's SSA records, the VA has met its obligation with respect with its duty to assist. Therefore, the Board finds that all necessary assistance has been provided to the Veteran. The duty to assist also requires that when a VA examination is conducted that the VA ensures it is adequate. The Veteran underwent VA examinations in 2011 and 2015, and the Veteran's file was reviewed by the VA examiners. The VA examiners reviewed the Veteran's medical history, recorded current complaints, and rendered appropriate diagnosis and opinions consistent with the total evidence of record. Thus, the VA examination reports, as discussed further below, are adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007). Legal Criteria for Service Connection The Veteran contends that he has ischemic heart disease as a result of exposure to herbicides during his service in Vietnam. Given such, he maintains that he is entitled to service connection. Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). For purposes of establishing service connection for a disability resulting from exposure to a herbicide agent, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, shall be presumed to have been exposed during such service to a herbicide agent, absent affirmative evidence to the contrary demonstrating that the Veteran was not exposed to any such agent during service. 38 U.S.C. § 1116(f). Certain diseases listed at 38 C.F.R. § 3.309(e) (2017), including ischemic heart disease, are presumed to be due to exposure to herbicide agents if manifesting to a degree of 10 percent or more at any time after service. To establish a claim for service connection, a current disability must have existed on or after the date of application for said disability. See 38 U.S.C. § 1131; see also Degmetich v. Brown, 104 F.3d 1328, 1329, 1330-31, 1333 (Fed. Cir 1997); McClain v. Nicholson, 21 Vet.App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). An adequate medical report must rest on correct facts and reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board's consideration and weighing of the report against any contrary reports. Id. Factual Background In December 1994, Dr. M.R., of Cardiology Consultants determined that the Veteran did not have Ischemic Heart Disease. In September 2005, the Veteran was diagnosed with unstable angina due to complaints of fatigue and shortness of breath. See September 2005 Private Treatment Record from Dr. S.K. received on February 17, 2009, page 44 of 52. He subsequently underwent a left heart catheterization to rule out any coronary ischemia. The final assessment was chest pain, dyspnea. In August 2009, the Veteran complained of chest pain, which he reported was resolved by taking Rolaids or own its own. See August 2009 West Palm Beach VA Medical Center (VAMC) treatment records, dated August 31, 2009. In February 2011, the Veteran was examined by Dr. P.Y., a chiropractic physician. Dr. P.Y. provided the Veteran with a provisional diagnosis of ischemic heart disease. See February 2011, Private Treatment Record from Dr. P.Y. received on March 25, 2011. He stated that out of an abundance of caution, due to "ST-T segment presentation and symptoms," specialty consultation was directed to a Board Certified cardiologist. He also noted that he was "of the opinion that any and all stress testing should be performed in a hospital," and that his "office [wa]s not equipped to perform echocardiography or other more sophisticated cardiac testing." He stated that "[s]hould ischemic heart disease be confirmed on specialty cardiac examination as discussed, such heart disease is a permanent and progressive condition." Id. The Veteran underwent a VA examination in April 2011. See April 2011 VA Ischemic Heart Disease Examination, Disability Benefits Questionnaire (DBQ) . The examiner opined that there is no evidence of ischemic heart disease. He based his opinion on a physical examination of the Veteran and diagnostic testing, including a stress test, which revealed a left ventricular ejection fraction (LVEF) of 61% and myocardial perfusion imaging that showed "no definitive evidence of ischemia." In November 2011, the Veteran denied a history of cardiovascular disease or congestive heart failure. See Central Medical Consultants, received on June 17, 2013. A VA progress note reflects that a chest X-ray taken in October 2013 showed a normal heart size and arteriosclerotic changes in the Veteran's aorta. See October 2013 West Palm Beach VAMC, Diagnostic Letter Notification. In April 2014, the Veteran was diagnosed with atypical chest pain and palpitations. See April 2014 West Palm Beach VAMC progress notes. In May 2014, the Veteran was referred for further cardiac evaluation for complaint of lower abdominal pain. He underwent diagnostic testing including a Holter monitor test, which showed no significant arrhythmias, and a nuclear stress test showed no signs of ischemia. See May 2015 West Palm Beach VAMC progress note. At a VA medical center appointment in March 2015, the Veteran had regular heart rate and rhythm. See March 2015 West Palm Beach VAMC, Primary Care Note. His treatment records also consistently showed normal heart exams including regular, rate and rhythm, normal heart sounds, and lack of murmurs. His treatment records also indicate that he was prescribed medications for hypertension and hyperlipidemia. The Veteran was afforded a second VA examination for ischemic heart disease in October 2015. Based on a physical examination, interview with the Veteran, and a review of the relevant records, including diagnostic tests, the examiner opined that there is no evidence of ischemic heart disease or any other heart disease. See October 2015 VA Heart Conditions, DBQ. The examiner noted that the Veteran reported heart palpitations, nausea, and dizziness for the past five years. However, he observed that the Veteran exhibited no evidence of heart abnormality, cardiac hypertrophy, or cardiac dilatation. The examiner also found that the Veteran had a normal Holter monitor test, and that the Veteran had "normal left ventricular motion and post-stress left ventricular fraction is 64%." Analysis The Board has reviewed the Veteran's claim and finds that the first element of service connection has not been established because the evidence of record does not establish that the Veteran has a current disability. The Veteran filed his claim for entitlement to service connection for ischemic heart disease in March 2011. However, the only diagnosis of record in support of the claim is a provisional diagnosis of ischemic heart disease. However, the Board does not afford much weight to this provisional diagnosis. Specifically, Dr. P.Y., a chiropractic physician, in a February 2011 private medical report, specified that the Veteran had a provisional diagnosis of ischemic heart disease. He explained that the Veteran was given a provisional diagnosis because his office was not equipped to perform "sophisticated cardiac testing." He noted that based on a "3 lead ECG screening" it was "strongly suggestive of ischemic heart disease." Dr. P.Y., recommended that the Veteran consult with a cardiologist for further diagnosis and treatment of ischemic heart disease especially where he believed that a stress test should be performed at a hospital and he could not perform an echocardiography. Due to the nature of this provisional diagnosis, as it was not provided with specialty cardiac diagnostic testing, as conceded by Dr. P.Y., and there was uncertainty as to whether the Veteran had ischemic heart disease, the Board gives less probative weight to this opinion. Moreover, there is no evidence within the report that Dr. P.Y. reviewed the Veteran's complete medical records in offering his opinion. On the other hand, the Board affords the VA examination reports in June 2011 and October 2015 more probative weight than Dr. P.Y's report. Specifically, the VA examination reports were based on an examination of the Veteran, thorough review of the Veteran's treatment records, and diagnostic test results, which confirmed no evidence of ischemic or any other heart disease. Indeed, here, unlike Dr. P.Y's examination, the Veteran was given a stress test at the June 2011 VA Ischemic Heart Disease examination, and three specific tests, an echocardiogram, a Holter monitor, and a nuclear stress test, at the October 2015 VA Heart Conditions examination. Therefore, the Board finds the VA examiners' opinions are probative and outweigh the opinion of Dr. P.Y. for the reasons discussed herein. The Board also notes that prior to filing his claim, it reflects that the Veteran was diagnosed with unstable angina and/or chest pain in 2005. However, for VA purposes, pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Furthermore, the diagnosis of unstable angina, which predated the Veteran's claim by six years and it is not considered a current disability, was not identified in either the February 2011 or October 2015 VA examination reports. See Degmetich v. Brown, 104 F.3d 1328, 1332 (Fed. Cir. 1997) ("The statutes governing payment of benefits for disability . . . only allow payment for disability existing on and after the date of application."); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013) ("when the record contains a recent diagnosis of disability prior to . . . filing a claim for benefits based on that disability."). In sum, although the Veteran was diagnosed with unstable angina in September 2005, six years prior to filing his claim, and was provisionally diagnosed with heart disease by a chiropractor in 2011, he was never diagnosed with or treated for a heart disability after extensive cardiac evaluations during the time he submitted his claim. Moreover, VA treatment providers and the VA examiners specifically found that the Veteran did not have ischemic heart disease based on extensive physical examinations and cardiac diagnostic tests. Therefore, the Board finds that the Veteran does not have a current heart disability. The Board finds that service connection for ischemic heart disease is not warranted, as a preponderance of the evidence shows that the Veteran does not have ischemic heart disease. Accordingly, the Board finds that the first element of service connection has not been met. Without evidence of a current heart disability, to include ischemic heart disease, the Board need not address the other elements of service connection. See 38 U.S.C. § 1110 (2012); Degmetich v. Brown, 104 F. 3d 1328 (1997) (the existence of a current disability is the cornerstone of a claim for VA disability compensation); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of evidence of a present disability, there can be no valid claim); Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007) (stating "[w]ithout a current disability, of course, there can be no service connection and, thus, no disability compensation.") Therefore, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Entitlement to service connection for a heart disability, to include as due to exposure to herbicides, is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs