Citation Nr: 18141047 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-10 682 DATE: October 9, 2018 ORDER Entitlement to service connection for heart condition, to include as due to agent orange (herbicide) exposure, is denied. FINDINGS OF FACT 1. The Veteran served in Vietnam from November 1965 to November 1966, and is presumed to have been exposed to herbicide agents during service. 2. The preponderance of the probative evidence demonstrates that the Veteran does not have a current diagnosis of a heart condition at any time since the claim was filed. CONCLUSION OF LAW 1. The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 1110, 1112, 1113,1116 (2012); 38 C.F.R. §§3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1964 to July 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision of the Reno, Nevada, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2017, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Service Connection for Heart Condition Neither the Veteran nor his representative have raised any specific issues with the duty to notify or duty to assist. 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.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §1110; 38 C.F.R. §3.303. “To establish a right to compensation for a present disability, a veteran must show: ‘(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’ – the so-called “nexus” requirement.” Holton v. Shineski, 557 F.3d 1362,1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). VA regulations provide that a Veteran who, during active military, naval, or air service, 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, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. §3.307(a)(6)(iii). The Veteran served in Vietnam from November 1965 through November 1966 and is therefore presumed to have been exposed to herbicide agents. See VA Form 21-526. VA regulations provide that a number of diseases, including heart conditions such ischemic heart disease (IHD), arteriosclerotic heart disease, and coronary artery disease, shall be service-connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R §3.307(d) are satisfied. 38 C.F.R. §3.309(e). In rending a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which if it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. §5107(b). When a reasonable doubt regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. §3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the Veteran contends that he has a heart condition that is related to service, including from his exposure to herbicides agents while serving in Vietnam. The Veteran submitted his claim for VA compensation benefits in June 2013. However, as will be discussed, the Board finds that the Veteran does not have a diagnosed heart disability at any time during the course of the appeal. Thus, as the first criterion to establish service connection, a current disability, is not satisfied, service connection for a heart condition cannot be granted. In March 2014, the Veteran was afforded a VA examination related to his heart claim. Initially the Board notes that the examiner indicated the claims file was not available for his review. The examiner opined that the Veteran has IHD and diagnosed the Veteran with arteriosclerotic heart disease. He noted no congestive heart failure. The examiner stated that the Veteran’s IHD impacts his ability to work. In contrast, the examiner concluded that the Veteran’s heart condition is less likely as not considered IHD. Finally, the examiner noted the Veteran was diagnosed with slight blockage of coronary arteries, however, to be considered IHD, the blockage should be more than 50 percent. Thereafter, a March 2016 VA opinion was obtained which indicated that every person over 40 years old has some degree of coronary artery disease (CAD), however, that does not mean their CAD is sufficient to rob the heart muscle of blood flow and oxygen. He noted, when blood flow is restricted to that degree, ischemia is established. After review of the prior medical evidence, including the March 2014 opinion and the testing performed in 2013, the Examiner indicated the Veteran does not have significant CAD where “significant would mean causing ischemia/dysfunction.” In September 2017, the Board remanded the Veteran’s claim to obtain an additional VA examination. Specifically, the Board requested an examination and opinion to determine whether the Veterans heart condition is severe to the extent where it can be considered a diagnosis for IHD. In March 2018, a VA examination was conducted which indicated that the Veteran currently does not have nor has ever been diagnosed with a heart condition. During the exam, the Veteran denied any history of heart attacks, heart surgeries, or chest pain. The examiner noted that the Veteran had a nuclear medicine stress test in 2013, which was reported as normal. The Board notes that the examiner indicated that there was new evidence of the heart disease. However, the examiner could not find records of any new evidence that was supposed to be from 2016 or 2017. Further, no new evidence of the Veteran’s heart condition exists in his file for the Board to use in consideration of his claim. Furthermore, the examiner noted that none of the Veteran’s heart conditions qualify within the generally accepted medical definition of IHD. During the exam, the Veteran indicated that he is taking the following medications for his heart condition: Acetylsalicylic Acid (Aspirin), Atorvastatin, and Amlodipine for Dyslipidemia and Hypertension. However, these medications are preventive medications and not necessarily indicative that the Veteran is suffering from a heart condition. These medications do, however, suggest that the Veteran may be at risk of a heart attack but not currently suffering from a heart condition. The examiner also stated that the Veteran does not currently suffer from a myocardial infarction, congestive heart failure, cardiac arrhythmia, heart valve condition, infectious heart conditions, or pericardial adhesions, and has not been hospitalized for treatment of heart conditions. Upon physical examination, the Veteran’s heart rate was noted as 84, with regular rhythm not palpable at the point of maximal impact, normal heart sounds, no jugular-venous distention, clear auscultation of the lungs, normal peripheral pulses, and no peripheral edema. After review of the record, the Board finds that service connection for a heart condition is not warranted. The Board finds the opinion of the March 2018 examiner, that the Veteran does not have a heart condition during the appeal period, to be highly probative, as it reflects consideration of all relevant facts as evidenced by citations to relevant items from the claims file, the Veteran’s medical records, and is supported by a detailed rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Specifically, the examiner noted that the June 2013 echocardiogram, which found normal wall motion and wall thickness reflect the Veteran’s current functional status. Additionally, the examiner conducted an interview-based metabolic equivalent test where the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity. The Board has also considered the decision of the Court of Appeals for Veterans claims in McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim) and Romanowsky v. Shinseki, 26 Vet. App. 289, 321 (2013) (considering the application of McClain to a situation in which a disability manifests prior to the filing of a claim for VA benefits and then resolved before the claim is adjudicated). In this case, the Board has considered medical evidence dated prior to the filing of the Veteran’s claim in June 2014, as well as evidence dated during the pendency of the appeal, and has given great probative weight to the March 2018 VA examiner’s conclusion, based on examination findings dated prior to and during the claim period, that the Veteran has not suffered from a diagnosed cardiac disability during the course of the appeal. In sum, the most probative evidence indicates that the Veteran has not suffered from a heart disability during the course of the appeal. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. §1110. In the absence of a current disability, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Romanowsky, 26 Vet. App. At 293; McClain, 21 Vet. App. At 321. Accordingly, the preponderance of the evidence is against the claim, and direct service connection is denied. To the extent that the Veteran has opined he currently has a heart condition which is etiologically linked to active duty, this opinion is without probative value. The determination as to the presence of a heart disorder requires specialized testing as well as medical knowledge. The Veteran is a lay person without the requisite knowledge and training. The Board finds, after resolving all reasonable doubt in favor of the Veteran, the Veteran does not have a diagnosis for a heart condition at any time during the appeal period and therefore service connection is not warranted on a presumptive basis based on herbicide exposure. See 38 C.F.R. § 3.307, 3.309. The lack of a competent diagnosis of a current heart disorder also means that service connection is not warranted on a direct basis. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Ronquillo, Law Clerk