Citation Nr: 18139826 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-16 280 DATE: October 1, 2018 ORDER Entitlement to service connection for a back condition is denied. REMANDED Entitlement to service connection for a cardiac heart disability, claimed as a heart valve replacement, is remanded. FINDING OF FACT The preponderance of the evidence is against finding that a back condition began during active service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a back condition are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from January 1971 to December 1972. The matters are before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. § 3.159. The Veteran has not raised any issues with the duty to notify. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"). The Board finds that VA is not required to provide the Veteran a VA examination for his low back condition. The following four factors should be considered when determining whether VA is required to provide a VA medical examination or a medical opinion: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain chronic diseases were manifested during an applicable post-service presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). The third factor has a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Although the Veteran was not provided with a VA examination with regard to his claim for a back condition, one was not required in this case because there is no evidence of this disability during military service and there is no evidence, other than the Veteran's statements, indicating an association between back pain and his military service. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159; see McLendon, 20 Vet. App. at 83-86. In the absence of any evidence indicating an association between a back condition and the Veteran's service, the Veteran's statements alone are insufficient to trigger VA's duty to obtain an examination. See Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010). There have been no other issues raised regarding the duty to assist. Scott, 789 F.3d at 1381; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 2. Entitlement to service connection for a back condition The Veteran contends that he has a current back condition that was incurred from an event in-service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran is competent to report symptoms such as back pain, and private treatment records dating back to 2007 show that the Veteran has consistently reported low back pain. It is unclear from the record whether the Veteran’s back pain causes any functional impairment. For purposes of this decision, the Board will assume that there is some functional impairment and that the Veteran currently has a back disability. However, there is no evidence of record specifying any in-service event, injury, or disease that may be the cause of the Veteran’s back pain. Additionally, the Veteran’s service treatment records do not indicate any complaints of or treatment for back pain. Neither is there any evidence of a nexus between an in-service injury, event, or disease and the Veteran’s current back pain. The Board concludes that, while the Veteran suffers from low back pain, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). While the Veteran believes his back pain is related to his military service, the Board reiterates that the preponderance of the evidence weighs against the finding of an in-service occurrence. The preponderance of the evidence also weighs against finding a nexus between an in-service occurrence and the Veteran’s current back pain as the Veteran did not assert, and the evidence does not reflect, an in-service occurrence or any relationship between his current symptoms and his service. REASONS FOR REMAND Entitlement to service connection for a heart disability is remanded. The Board cannot make a fully-informed decision on the issue of a heart valve replacement because no VA examiner has clearly opined whether the Veteran’s heart valve replacement is at least as likely as not related to the Veteran’s Agent Orange exposure while serving in Vietnam. Absent affirmative evidence to the contrary, a Veteran has presumed herbicide agent exposure, to include Agent Orange, if the evidence demonstrates that the Veteran served in the Republic of Vietnam during the Vietnam War during active military, naval, or air service. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307. The Veteran is presumed to have been exposed to Agent Orange during his service in the Republic of Vietnam. The Veteran’s service treatment records show that he was stationed on the USS Mobile LKA-115 in July 1972. From January 1972 to July 1972, the USS Mobile operated on Vietnam’s close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore. Examples of such vessels include attack cargo ships, amphibious attack transports, and landing ship docks. A Veteran aboard the USS Mobile between January 1972 and July 1972 will be eligible for the presumption of exposure to herbicide agents if there is evidence of personally going ashore with a landing craft. The Veteran’s DD 214 notes that the Veteran trained as an Assault Boat Coxswain, which is consistent with movement between the USS Mobile and Vietnam. Thus, it is conceded that the Veteran went ashore in Vietnam during his service, and he is entitled to the presumption of exposure to herbicide agents. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of § 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 § 3.307(d) are also satisfied. One of those diseases is 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). 38 C.F.R. § 3.309(e). A June 2013 VA medical opinion reviewed the Veteran’s claims file and opined that the Veteran does not have ischemic heart disease. The Board notes that private treatment records in January 2009 indicate the Veteran had coronary atherosclerosis and in November 2009 indicate that the Veteran had coronary artery disease, status post aortic valve replacement. As noted above, § 3.309(e) indicates that atherosclerotic heart disease, including coronary artery disease, qualifies as ischemic heart disease; however, the June 2013 VA opinion reviewed the claims file which contained the records indicating that the Veteran had coronary artery disease, but concluded that there was no evidence that the Veteran had ischemic heart disease. The clinician did not provide a clear rationale for this conclusion, including discussing why the atherosclerosis and coronary artery disease notations did not reflect that the Veteran had ischemic heart disease. The June 2013 VA opinion is therefore insufficient. As such, a further examination and opinion is needed to clarify the nature of the Veteran’s heart disease and whether it qualifies as ischemic heart disease for presumptive purposes. Accordingly, the matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any heart disability. The examiner must provide an opinion on the following questions: A) Does the Veteran have a heart disability that qualifies as ischemic heart disease? In providing this opinion please discuss the significance of the January 2009 private treatment record indicating coronary atherosclerosis and the November 2009 private treatment record noting coronary artery disease. B) If it is determined that the Veteran has not had heart disease that qualifies as ischemic heart disease, then is it at least as likely as not that any identified heart disease is related to in-service herbicide agent exposure? A complete rationale for all opinions must be provided, to include consideration of the arguments, lay, and medical evidence previously submitted by the Veteran. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K Pak, Associate Counsel