Citation Nr: 18148536 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 13-16 763 DATE: November 7, 2018 ORDER Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure, is denied. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. FINDINGS OF FACT 1. The Veteran is shown to have served during the Vietnam War, and he is presumed to have been exposed to Agent Orange or other herbicide agents during that time. 2. The Veteran’s heart valve condition and hypertension were not manifested in service or to a compensable degree within one year thereafter, and are not shown to be etiologically related to service, including conceded herbicide exposure in the Republic of Vietnam; no chronic heart disorder other than the Veteran’s heart valve condition and hypertension are shown. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for hypertension, to include as due to herbicide exposure, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from April 1965 to March 1967, including service in the Republic of Vietnam. In August 2017, the Board of Veterans’ Appeals (Board) remanded the instant claims on appeal to the local Regional Office (RO) for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued in July 2018. The matter has returned to the Board. The Board acknowledges that additional VA treatment records were associated with the claims file in August 2018 after the issuance of the July 2018 SSOC. The additional VA treatment records are not relevant to the issues decided herein. Accordingly, a remand for issuance of an additional SSOC as to those issues in consideration of that further additional evidence is not necessary, and the Board may proceed with appellate consideration. See 38 C.F.R. § 19.37. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Certain “chronic diseases” may be presumed to have been incurred in service if they manifest to a degree of 10 percent or more (i.e., to a compensable degree) within one year of the Veteran’s separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary, however. Id. With respect to service connection based on herbicide exposure, VA laws and regulation provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain diseases, including ischemic heart disease, will be presumed to have been incurred in service if manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116(a)(2); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Additionally, the Board notes that VA has recognized that there is limited or suggestive evidence of an association between hypertension and Agent Orange exposure. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20308, 20309-10 (Apr. 11, 2014). This is in the context of information used by VA for presumptive service connection purposes - i.e., whether to add hypertension to the list of conditions for which service connection is presumed based on herbicide exposure. Limited or suggestive evidence of an association is does not rise to even an equipoise evidentiary standard. Notwithstanding the provisions of 38 U.S.C. § 1116 and 38 C.F.R. § 3.309(e), relating to presumptive service connection due to exposure to Agent Orange, a claimant is not precluded from establishing service connection with proof of actual causation, that is, proof the exposure to Agent Orange actually causes a disability, which is not included in the list in 38 C.F.R. § 3.309(e). See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303(d). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue.”). The Veteran contends that he is entitled to service connection for ischemic heart disease and hypertension, to include as due to herbicide exposure. As previously noted, the Veteran served in the Republic of Vietnam, and it is conceded that he was exposed to herbicides. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). As the analysis is similar, the issues will be discussed together. A February 2003 VA treatment record notes that the Veteran had hypertension. It is noted that this is the first evidence of a diagnosis of hypertension. A November 2009 private treatment record notes that the Veteran had a history of arterial hypertension. It is noted that an electrocardiogram (ECG) was conducted and showed normal sinus rhythm with inferolateral ischemic changes. There was no breast, motion, diaphragmatic, or abdominal artifact present. The left ventricular cavity appeared of normal size, and there were no wall motion anomalies. Based on the ECG, the private physician noted a normal myocardial perfusion study and normal left ventricular contraction. He also noted that he suspected cardiac ischemia. As will be discussed, subsequent diagnostic testing was conducted to verify whether the Veteran did indeed have inferolateral ischemia. As will be shown, such testing has confirmed that the Veteran does not have ischemic heart disease. On VA examination in May 2012, the examiner noted that the Veteran did not have ischemic heart disease. The examiner further noted that the Veteran did not have a history of percutaneous coronary intervention, myocardial infarction, coronary bypass surgery, heart transplant, implanted cardiac pacemaker, or an implanted automatic implantable cardioverter defibrillator. Furthermore, the Veteran did not have congestive heart failure. On VA examination in January 2017, the examiner noted diagnoses of valvular heart disease and hypertensive heart disease. The examiner also noted that an ECG conducted in July 2012 showed left ventricular ejection fraction (LVEF) of 60-65%. It also showed normal wall motion and wall thickness consistent with left ventricular hypertrophy. The examiner further noted that the Veteran’s onset of hypertension and left ventricular hypertrophy was in 2003. The examiner indicated that the Veteran’s heart conditions did not qualify within the generally accepted medical definition of ischemic heart disease. On VA examination in November 2017, consistent with the findings noted in the January 2017 VA examination report, the examiner noted that the Veteran did not have a heart condition that qualified as ischemic heart disease. The examiner noted that an ECG was conducted in October 2017, and revealed LVEF of 65-70%, and normal wall motion and wall thickness. The examiner also noted that a myocardial perfusion was conducted in 2012, which revealed a normal study. There was no scintigraphic evidence of reversible perfusion changes to suggest exercise-induced myocardial ischemia. There was well preserved left ventricular systolic function. In January 2018, VA obtained an independent medical opinion. Upon a thorough review of the Veteran’s claims file, the examiner noted that the Veteran had diagnosed conditions of a heart valve condition and hypertension. The examiner noted that the diagnostic testing, as noted above, showed a lack of any objective cardiovascular-based clinical evidence of inferolateral ischemia. The examiner further noted that there was no medically-based clinical evidence to support diagnoses of ischemic heart disease, myocardial infarction, congestive heart failure, angina, cardiac arrhythmia, or pericardial adhesions. As the examiner confirmed that the Veteran had diagnoses of a heart valve condition and hypertension, it was noted that the herbicide presumption did not apply. The examiner further indicated that the Veteran’s diagnosed conditions were not otherwise related to his active service, to include herbicide exposure, as his examination upon separation showed that an evaluation of his heart was deemed normal, and his blood pressure reading was 130/80. Furthermore, the examiner noted that the Veteran denied experiencing high or low blood pressure, cramps in legs, palpitation or pounding heart, and/or shortness of breath. The examiner also noted that there was a lack of any subjective complaints or objective medical and/or cardiovascular-based clinical evidence related to a heart condition or hypertension within one year of the Veteran’s separation from service. As such, the examiner concluded that service connection for the claimed heart condition and hypertension could not be established on a presumptive basis. Furthermore, as the onset of the Veteran’s claimed heart condition and hypertension neither occurred during service nor within one year of his separation from service, the examiner opined that it was less likely than not that the claimed heart condition and hypertension were related to, caused, or aggravated by his period of active service, to include exposure to herbicides. The Board finds this opinion to be adequate and probative medical evidence against the claims. The examiner supported his conclusions with sufficient rationale. Based on the foregoing, the medical evidence shows that the Veteran has current diagnoses of a heart valve condition and hypertension, neither of which are recognized as a disease presumptive to veterans who were exposed to an herbicide agent during active service. 38 C.F.R. § 3.309(e) (noting ischemic heart disease does not include hypertension). Therefore, service connection for either claimed disability on a presumptive basis due to herbicide exposure is not warranted. 38 C.F.R. §§ 3.307, 3.309(e). Concerning the in-service event, injury, or disease, the medical evidence does not show, and the Veteran does not contend, that his heart condition or hypertension had its onset or manifested in service. Service treatment records reveal no complaints or diagnoses of a heart condition or hypertension. The February 1967 release from active duty examination noted that the Veteran’s heart and vascular system were deemed normal, and that his blood pressure was 130/80. As such, the service treatment records fail to demonstrate that the Veteran suffered from a chronic disability of the heart or chronic hypertension at the time of his separation from active duty. Likewise, post-service treatment records fail to reflect that the Veteran suffered from a heart condition or hypertension within one year of his separation from active duty. As noted above, it was suspected that the Veteran had cardiac ischemia in November 2009; however, subsequent diagnostic testing showed that the Veteran did not have ischemic heart disease. On VA examination in January 2017, the examiner provided diagnoses of valvular heart disease and hypertensive heart disease. Furthermore, also as noted above, the first evidence of record of a diagnosis of hypertension is in February 2003. Thus, the evidence confirms diagnoses of a heart condition and hypertension several decades after the Veteran’s separation from active service. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (stating that evidence of a prolonged period without complaint is proper to consider); Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (indicating that “negative evidence” was relevant to a proximate cause determination). As such, there is no lay or medical evidence of in-service onset of the Veteran’s heart condition and hypertension. As noted above, it is not in dispute the Veteran had active service in Vietnam and had herbicide exposure therein. As the Veteran’s diagnosed heart condition and hypertension are not recognized as diseases entitled to the presumptive provisions regarding service connection based on herbicide exposure, such regulations are not applicable to the Veteran’s claims for service connection. Therefore, the claims of service connection for ischemic heart disease and hypertension must be denied on a presumptive basis. 38 C.F.R. § 3.307(a)(6)(iii). Inasmuch as the Veteran does not contend service connection for a heart condition or hypertension based on post-service recurrence of symptomatology, entitlement to service connection on such basis must be denied. 38 C.F.R. § 3.303(b). As for service connection based on the initial documentation of the disability after service under 38 C.F.R. § 3.303(d), the Board notes that the record is negative for a competent and credible opinion finding a causal association or link between the Veteran’s current heart condition and hypertension and an established injury, disease, or event in service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). To the extent the Veteran contends his heart condition and hypertension are caused by his service, to include herbicide exposure, the Board finds that the diagnoses of a heart condition and hypertension may not be made by a layperson because special medical training and testing is required to diagnose each disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Therefore, the Board finds that the presence of the disability is a determination “medical in nature” and not capable of lay observation. Id. As such, since laypersons are not capable of opining on matters requiring medical knowledge, the Board finds that the Veteran’s opinion that his heart condition and hypertension were caused by service is not competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Put simply, the evidence does not establish that the Veteran had a heart condition or hypertension during active service or to a compensable degree within one year of separation from active service, or that his heart condition or hypertension is otherwise related to active service, to include as due to herbicide exposure. Accordingly, neither his heart condition nor his hypertension was incurred in or aggravated by service, nor may it be presumed to have so been incurred. For the foregoing reasons, the preponderance of the evidence is against the claims for service connection for ischemic heart disease and hypertension. The benefit-of the-doubt doctrine is therefore not applicable, and the Veteran’s claims of entitlement to service connection for ischemic heart disease and hypertension must be denied. See 38. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel