Citation Nr: 18150143 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-43 082 DATE: November 14, 2018 ORDER Entitlement to service connection for a heart disability (excluding hypertension), including as ischemic heart disease and coronary artery disease, as due to herbicide agent exposure, is denied. Entitlement to service connection for hypertension, including as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for sinusitis, including as due to asbestos exposure and rust exposure, is remanded. Entitlement to service connection for a respiratory disability, identified as COPD, including as due to asbestos exposure and rust exposure, is remanded. FINDINGS OF FACT 1. The Veteran did not step foot in the Republic of Vietnam or on an inland waterway during the Vietnam Era, so he cannot be presumed to have been exposed in-service to an herbicide agent. The Veteran was not otherwise exposed to an herbicide agent. 2. A heart disability, including ischemic heart disease and coronary artery disease, did not manifest in service or within one year. The disability is not otherwise related to service, including as due to claimed herbicide agent exposure. 3. Hypertension did not manifest in service or within one year. The disability is not otherwise related to service, including as due to claimed herbicide agent exposure. CONCLUSIONS OF LAW 1. A heart disability was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107.; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. Hypertension was not incurred in or aggravated by service, and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to December 1968. Service Connection Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For all chronic diseases other than leprosy, tuberculosis, and multiple sclerosis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” 38 C.F.R. § 3.303(b). When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected if they manifest to a compensable degree at any time after service. 38 U.S.C. § 1116 (a)(1); 38 C.F.R. § 3.307 (a). Ischemic heart disease, including coronary artery disease, is listed among the diseases presumed to be associated with Agent Orange exposure. 38 U.S.C. § 1116 (a)(2)(H); 38 C.F.R. § 3.309 (e). A Veteran, who “served in the Republic of Vietnam” between January 9, 1962, and May 7, 1975, is presumed to have been exposed during such service to Agent Orange. 38 U.S.C. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). Herbicide Agent Exposure The Veteran contends that he was exposed to Agent Orange while in service. Specifically, he states that he was told during a meeting with a VA clinic caseworker that he had been exposed to Agent Orange. The Veteran’s DD-214 shows that he was authorized for the Vietnam Service Medal with Bronze Star and the Vietnam Campaign Medal. Although the Board recognizes his meritorious service, neither medal required service in the Republic of Vietnam. Exposure to Agent Orange may be presumed for any Veteran who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975. Nonetheless, the Veteran’s service personnel records do not indicate that the Veteran served in the Republic of Vietnam at any point, nor has the Veteran alleged such. The Veteran served aboard the USS America. A document detailing the duties of the USS America during 1967 and 1968 does not indicate that the ship served in either inland waters or offshore waters surrounding Vietnam at any point during that period. There is no evidence of any other exposure to Agent Orange or another herbicide agent. Therefore, a finding that the Veteran was exposed to an herbicide agent is not warranted. 1. Entitlement to service connection for a heart disability The Veteran seeks service connection for a heart disability. The issue 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 service. The Veteran has been diagnosed with coronary artery disease and unstable angina, per a May 2016 Heart Conditions DBQ. The Board concludes that, while the Veteran has a diagnosis of coronary artery disease, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As discussed above, the evidence does not support a finding that the Veteran was exposed to an herbicide agent while in service. The Veteran’s service treatment records are silent for any complaints or treatment for heart trouble. Upon examination at separation the Veteran’s heart was normal. While the Veteran believes his heart disability is related to exposure to Agent Orange during service, the Board reiterates that the evidence does not support that the Veteran was exposed to any herbicide agent, to include Agent Orange. There is no medical nexus opinion evidence to relate his current heart disability back to service, including as due to claimed in-service herbicide exposure. Moreover, he is not competent as a lay person to testify as to the etiology of a complex medical condition, namely a heart disability, which requires extensive medical training and knowledge. Thus, there is no need to comment on the credibility of his contention that his heart disability is due to in-service herbicide exposure. Coronary artery disease, as a type of cardiovascular-renal disease, may also be service-connected under the presumption for chronic diseases.38 C.F.R. § 3.309(a). However, there is no evidence to indicate that the Veteran’s coronary artery disease was manifest within one year of separation. His earliest complaints regarding his heart are from 2007, nearly forty years after his separation. Presumptive service connection for chronic diseases is also not warranted. Thus, there is no reasonable doubt to apply, and the appeal is denied. 2. Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension. The issue 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 service. The Board concludes that, while the Veteran has a diagnosis of hypertension the preponderance of the evidence is against finding that it began during active service, or is otherwise related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). As discussed above, the evidence does not support a finding that the Veteran was exposed to an herbicide agent while in service. The Veteran’s service treatment records are silent for any complaints or treatment for hypertension. Upon examination at separation the Veteran’s vascular system was normal. There are no documented instances of high blood pressure while in service. Hypertension, specifically included under cardiovascular-renal disease, may also be service-connected under the presumption for chronic diseases. 38 C.F.R. § 3.309(a). However, there is no evidence to indicate that the Veteran’s hypertension was manifest, much less to a compensable degree, within one year of separation. The earliest documentation of his hypertension is from 2007, nearly forty years after his separation. Presumptive service connection is not warranted. While the Veteran believes his hypertension is related to exposure to Agent Orange during service, the evidence does not support the Veteran was exposed to any herbicide agent, to include Agent Orange. There is no medical nexus opinion evidence to relate his current heart disability back to service, including as due to claimed in-service herbicide exposure. The Board turns to consideration of secondary service connection. 38 C.F.R. § 3.310. The Veteran is service-connected for panic disorder with major depressive disorder. As hypertension can potentially result from an acquired psychiatric disorder, the Veteran was provided with a VA examination in June 2016. The examiner opined that the Veteran’s hypertension is less likely than not secondary to his panic disorder with major depressive disorder. The provided rationale was that the Veteran has a history of being a smoker and of coronary artery disease, and that the Veteran was diagnosed with hypertension in 2007 after a cardiac episode. The examiner concluded that the Veteran’s hypertension is a result of his coronary artery disease and lifelong smoking habit. However, as discussed above, the Board is denying the claim for service connection for a heart disability, without which there is no underlying service-connected disability to attribute his hypertension on a secondary basis. Moreover, he is not competent as a lay person to testify as to the etiology of hypertension, a complex medical condition, which requires extensive medical training and knowledge. Thus, there is no need to comment on the credibility of his contention that his hypertension is due to service or secondary to a service-connected disability. Based on the above, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran’s hypertension is related to his service or to any service-connected disability. Thus, there is no reasonable doubt to apply, and the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for sinusitis, including as due to asbestos exposure and rust exposure, is remanded. 2. Entitlement to service connection for a respiratory disability, identified as COPD, including as due to asbestos exposure and rust exposure, is remanded. The October 2015 VA examiner diagnosed the Veteran with chronic sinusitis and chronic obstructive pulmonary disease (COPD), a type of respiratory disability. The Veteran contends that he was exposed to asbestos while working in the boiler room during service, and that such exposure resulted in his COPD and sinusitis. The October 2015 examiner also provided a negative nexus opinion, that there is no evidence to support the Veteran’s claim asbestos exposure is responsible for his COPD and sinusitis. The examiner instead indicated the possibility that COPD is linked to his long history of cigarette smoking. However, the opinion is inadequate as it did not opine on an additional contention by the Veteran, that his sinusitis and respiratory disability are due to extreme rust exposure while working in the boiler room. See Veteran’s May 2016 statement. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for sinusitis and a respiratory disability, identified as COPD, without an opinion on potential etiology to rust exposure. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s chronic sinusitis is at least as likely as not related to rust exposure while on active duty. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s current respiratory disability, identified as COPD, is at least as likely as not related to rust exposure while on active duty. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel