Citation Nr: 18155116 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 12-16 857 DATE: December 3, 2018 ORDER Entitlement to service connection for a heart disorder, claimed as ischemic heart disease, as due to exposure to herbicide agents is denied. Entitlement to service connection for hypertension, to include as secondary to service-connected disability is denied. FINDINGS OF FACT 1. The Veteran had service in the Republic of Vietnam from April 1967 to March 1968, and his exposure to herbicide agents, include Agent Orange, is presumed. 2. The competent evidence does not demonstrate that the Veteran has a current diagnosed heart disorder listed among the diseases presumptively associated with exposure to certain herbicide agents which has manifested to a compensable degree as required under applicable regulations. 3. The evidence is against a finding that the Veteran’s current heart disorder and atherosclerotic aorta are otherwise related to his period of service, to include exposure to herbicide agents. 4. The Veteran’s hypertension was not demonstrated in service, did not manifest to a compensable degree within one year of separation from service, and the preponderance of the evidence does not show it is otherwise related to service, to include herbicide exposure, or proximately caused or aggravated by service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a heart disorder, claimed as ischemic heart disease, as due to exposure to herbicide agents have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). 2. The criteria for entitlement to service connection for hypertension, to include as secondary to service-connected disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1963 to June 1970. Service Connection Service connection will be granted on a direct basis if the evidence demonstrates that a current disability resulted from injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2018). Establishing service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection on a secondary basis will be awarded for a disability that is proximately due to, the result of, or permanently aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (2018). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309 (2018). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Service connection may also be presumed for certain diseases, such as ischemic heart disease (IHD), if a veteran was exposed to an herbicide agent, including Agent Orange, during service and the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Here, the evidence reflects that the Veteran served in the Republic of Vietnam during the Vietnam era. Therefore, the Veteran’s exposure to herbicide agents is conceded. See 38 C.F.R. §§ 3.307 (a)(6)(iii). It is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance in the evidence regarding the merits of an issue material to the matter’s determination, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a heart disorder, claimed as ischemic heart disease, as due to exposure to herbicide agents The Veteran asserts he has a heart condition that was caused by his active service, to include from exposure to herbicide agents. VA concedes the Veteran’s exposure to herbicide agents based on his service in the Republic of Vietnam. As an initial matter, the Veteran’s service treatment records are negative for any treatment or complaints for any heart condition. Additionally, the record does not reflect that the Veteran had any heart-related problems until decades after service. Since a chronic heart condition is not noted to a compensable degree within one year of the Veteran’s active service, in-service incurrence cannot be presumed under the provisions of 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). As previously noted, however, service connection may yet be presumed for ischemic heart disease (IHD) for a Veteran exposed to an herbicide agent during service if the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). IHD includes, but is not limited to: acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (CAD) (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina. 38 C.F.R. § 3.309 (e). However, a review of the Veteran’s medical records does not show a diagnosis or treatment for a current heart disorder indicative of ischemic heart disease. A March 2006 private chest x-ray report showed findings of atherosclerotic aorta, and these findings were confirmed in a March 2009 private chest x-ray. A January 2010 private pulmonary treatment record shows history of abnormal EKG and chest pain, and assessment of chronic diastolic congestive heart failure and hypertensive heart disease. However, a January 2010 private EKG report showed normal results. At a January 2012 VA heart examination, a VA examiner found that the Veteran did not have ischemic heart disease as there was no evidence of any atherosclerotic heart disease resulting in clinically significant ischemia or requiring coronary revascularization. The Veteran had not required continuous medication for any heart problems, and he denied symptoms of dyspnea, fatigue, angina, dizziness, or syncope with physical activity. Diagnostic testing included a normal EKG results and a chest x-ray report that showed evidence of atherosclerotic aorta, but no evidence of cardiac hypertrophy or dilatation. The VA examiner concluded there was no evidence of ischemic heart disease. Similarly, the report of a September 2015 VA heart examination shows that the VA examiner concluded that the Veteran does not have a condition which qualifies within the general medical definition of ischemic heart disease based on clinical evaluation and review of the medical records. The VA examiner noted that a review of the Veteran’s service treatment records and post-service VA and private treatment record did not show diagnosis of heart disease. In particular, an April 2015 private medical evaluation showed a finding of no heart disease. The VA examiner noted the private diagnostic evidence of atherosclerotic aorta, but he concluded that such finding does not demonstrate heart disease as aorta is not a part of the heart. The VA examiner further stated that if the Veteran’s heart had arteriosclerosis, the chest x-ray would have shown calcification of the heart arteries, but there was no such x-ray evidence. The VA examiner concluded that the Veteran did not have a current diagnosis of heart disease and atherosclerosis of the aorta is not one of the presumptive disease for herbicide agents. During his May 2013 hearing before the undersigned, the Veteran stated that he has was diagnosed with heart disease in 2006 and he regularly sees his private cardiologists once every six months. A review of the Veteran’s private treatment records from his cardiologist received in March 2016 does not show a diagnosis of heart disease nor treatment for heart disease with continuous medication, and there were no recorded complaints of cardiac symptoms such as chest pain, claudication, edema, irregular heartbeat, or palpitations. The report of a February 2016 private Persantine stress EKG and Myocardial Perfusion Study shows that during the study the Veteran did not have chest pain or other symptoms, and the EKG was negative for ischemic changes and negative for arrhythmia. The Myocardial Perfusion study revealed evidence of mild partially reversible ischemia in mid inferior and apical segments, which compared to a prior August 2013 study demonstrated no change in ischemia. Recommendations from the study included risk factor modification and a follow-up appointment. VA obtained an addendum medical opinion that considered whether the findings from the Veteran’s February 2016 Myocardial Perfusion study demonstrated evidence of ischemic heart disease. In a July 2017 VA medical opinion report, the VA examiner concluded that a review of the Veteran’s medical records refutes a diagnosis of ischemic heart disease as it was never listed by his treating cardiologist and the Veteran has not received treatment for ischemic heart disease. The VA examiner stated that an interpretation of the findings contained in the Myocardial Perfusion study could be made by simply following the recommendations from the study, which were risk factors modification such as controlling his weight and cholesterol, and engaging in exercise. The VA examiner noted that there was no recommendation for treatment of a heart condition, such as medication or invasive intervention (surgery). Rather, the VA examiner noted that if ischemic heart disease had been diagnosed based on the 2016 diagnostic findings, then the Veteran’s doctor would have prescribed treatment. However, VA examiner concluded that the Veteran does not have ischemic heart disease, because the Veteran is not being treated for ischemic heart disease nor has his doctors listed it as diagnosis in their reports. Moreover, the VA examiner noted that the medical records did not reflect that the Veteran fulfilled any of the criteria for ischemic heart disease, which included symptomatic angina pectoris, coronary spasm, myocardial infarction, or required coronary artery angioplasty, stenting or bypass. Finally, based on review of the claims folder, the July 2017 VA examiner concluded that it was less likely than not that the Veteran had a current heart disorder was a result of period of service. The rational was a review of the service treatment records were silent for heart-related complaints, and there was no evidence of such problems until decades after his period of service. Furthermore, at no point, has the Veteran been diagnosed or treatment for heart-related problems. Based on the foregoing, the Board finds that service connection is not warranted on a presumptive basis for ischemic heart disease due to in-service exposure to herbicide agents pursuant to VA regulations. See 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Under the diagnostic codes applicable to diseases of the heart, a compensable evaluation would be assigned for workload greater than 7 METs or heart disease requiring continuous medication. See 38 C.F.R. § 4.104. While the record demonstrates evidence of possible ischemia based the 2016 private Myocardial Perfusion scan, no medical provider during the appeal found it to be symptomatic or requiring continuous medication. Furthermore, no cardiac-related symptomatology has been associated with the diagnostic findings. In this regard, the Veteran specifically denied symptoms of dyspnea, fatigue, angina, dizziness, or syncope with physical activity during the January 2012 VA heart examination, and his private treatment records from his cardiologist show no complaints of cardiac symptoms of chest pain, claudication, edema, irregular heartbeat, or palpitations, or treatment for heart disease with continuous medication. Although the September 2015 VA examiner noted that the Veteran’s physical activities were significantly restricted, this was a result of his being oxygen dependent due to the severity of his nonservice-connected chronic obstructive pulmonary disorder (COPD). Accordingly, the Veteran’s heart symptomatology would not warrant a compensable evaluation, the disability is not subject to presumptive service connection under the provisions of 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) relating to herbicide agent exposure. Moreover, none of the VA examiners found that any current heart disorder that qualified as ischemic heart disease. As there is no medical evidence in either the Veteran’s VA or private treatment records in significant conflict with the findings and opinions of the VA examiners, the most probative evidence is against the Veteran’s claim. Thus, the claim for service connection for ischemic heart disease on a presumptive basis must be denied. The record also weighs against a finding that the Veteran’s heart disorder and atherosclerosis of the aorta are otherwise related to his period of service. In this regard, his service treatment records are negative for complaints or treatment indictive of heart or vascular related problems, and there is no post-service medical evidence of such problems until decades after his period of service. The record does not show evidence of the Veteran’s current conditions until 36 years after discharge from active service. While not dispositive, the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Furthermore, there is no medical opinion of record that has associated the Veteran’s current conditions with his period of service. Rather, the July 2017 VA examiner provided a medical opinion that weighs heavily against the Veteran’s claim for service connection, to include consideration of whether as result of in-service exposure to herbicide agents. The VA examiner’s medical opinion was based on a review of the claims folder and supported by a sufficient rational statement as discussed above. The Board notes that a lay person is competent to address etiology in some limited circumstances in which nexus is obvious merely through lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, however, the record dates the onset of his current conditions to after separation from active service and the question of causation extends beyond an immediately observable cause-and-effect relationship. Therefore, he is not competent to address etiology, and there is no medical evidence showing that he has a heart or vascular condition is related to active service. Rather, the Board finds the various medical opinions of record more probative than the Veteran’s lay statements, as the opinions were offered by medical professionals after examination of the Veteran and consideration of the history of the disabilities and are supported by clear rationale. In reaching the above determinations, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54-56. 2. Entitlement to service connection for hypertension, to include as secondary to service-connected disability The Veteran seeks entitlement to service connection for hypertension. He contends that he developed hypertension as a result of his service, to include exposure to herbicide agents. In the alternative, he asserts that his hypertension is secondary to his service-connected disabilities. At the outset, the Board again notes that the record shows the Veteran served in Vietnam and his exposure to herbicide agents is conceded; however, hypertension is not listed or contemplated among the diseases associated with certain herbicide agents under 38 C.F.R. § 3.309 (e). As a result, consideration of service connection for hypertension on a presumptive basis due to herbicide exposure is not warranted in this case. Regardless, this does not preclude consideration of his claimed hypertension on a direct or secondary basis. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, a review of the record shows the Veteran has a current diagnosis of hypertension during the appeal period, as noted in September 2015 VA examination reports. As a result, the Board finds the element of a current disability has been met in this case. Review of the Veteran’s service treatment records, to include examinations and reports of medical history, are silent for any in-service complaints, treatment, or diagnosis of hypertension, nor does the Veteran assert as such. However, as noted above, the Veteran is presumed to have had in-service herbicide exposure. As a result, the Board finds the element of an in-service injury has been met in this case. In the September 2015 VA examination report, the VA examiner noted that the Veteran was considered a poor historian due to memory problems, but a review of the medical records showed his hypertension had an onset after 1986, but prior to 2002. In this regard, the VA examiner noted that the report of a December 1986 VA general medical examination showed blood pressure reading within normal limits and there was no indication of hypertension at that time. VA treatment records show the Veteran initiated VA care in December 2002, and at that time, he reported a history of hypertension. Following a review of the claims file and in-person examination, the September 2015 VA examiner concluded that the Veteran’s hypertension is less likely as not related to his military service, to include herbicide exposure to herbicide agents. The rational was that the Veteran’s service treatment records do not show diagnosis or treatment of hypertension during active military service or until more than a decade afterwards, and hypertension has not been identified as one of the diseases associated with herbicide agents. The Board finds that the September 2015 VA opinion is competent and highly probative as the examiner reviewed the Veteran’s service records and post-service medical records, and provided rational for his opinion. There is no contrary medical opinion on file. Based on the evidence of record, there is no probative and competent evidence that demonstrates the Veteran’s hypertension was incurred in or related to active service, to include the presumed herbicide exposure. See 38 C.F.R. § 3.303. The Board finds that the evidentiary record does not contain positive probative evidence to establish that the third criterion to establish service connection on a direct basis has been met. The Board also finds that the preponderance of the evidence is against finding that hypertension manifested to a compensable degree within one year of separation from active duty or was chronic during service. Neither review of the evidentiary record demonstrates, nor has the Veteran asserted, a continuity of hypertensive symptoms since separation from active service in June 1970. In fact, a review of post-service treatment records reflects that the onset of hypertension was decades after separation from service. As a result, such evidence is not competent to establish the presence of hypertension within one year of separation from service. Accordingly, service connection for hypertension on a presumptive basis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.303 (b), 3.307(a)(3), 3.309(a). Moreover, in light of the onset of this disability after separation from service, the Board finds hypertension did not have onset during service to warrant service connection. See 38 C.F.R. § 3.303 (d). Lastly, a grant based upon continuity of symptoms is not warranted, as hypertension had its onset many years after service. Next, the Board has considered whether service connection is warranted for hypertension on a secondary basis. Throughout the pendency of the appeal, the Veteran has asserted the theory that his hypertension is secondary to his heart condition; however, as determined above, service connection is not warranted for a heart condition. The Veteran has more recently asserted that his hypertension is proximately caused or aggravated by his service-connected PTSD. In a July 2017 VA medical opinion report, VA the examiner concluded that it was less likely than not that the Veteran’s hypertension was proximately caused or aggravated by his service-connected PTSD disability. The rational was that there was no objective evidence that the Veteran’s PTSD caused his hypertension, and there is no indication in the medical records that the Veteran’s hypertension has been aggravated in any way, including no history of renal disease, strokes, or congestive heart failure. The Board finds that the 2017 VA opinion is competent and highly probative as the examiner reviewed the Veteran’s service records and post-service medical records, and provided rational for his opinion. There is no contrary medical opinion on file. The Board has considered the Veteran’s reported history of symptomatology related to is hypertension throughout the appeal period. He is competent to report such symptoms and observations because this requires only personal knowledge as it comes through an individual’s senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, the Veteran’s statements do not rise to a level of competency to offer a probative opinion as to the etiology of his diagnosed hypertension. Determining the etiology of the Veteran’s hypertension requires inquiry into internal physical processes that are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have the skills, experience, or medical training needed to make such a determination. As a result, the probative value of his lay assertions is low. The most probative evidence of record does not demonstrate that the Veteran’s hypertension is caused by or aggravated by his service-connected PTSD. See 38 C.F.R. § 3.310. The record does not contain positive probative evidence to establish that the criteria to establish service connection on a secondary basis has been met. In sum, the competent evidence of record does not demonstrate that the Veteran’s hypertension had an onset during his period of service or manifested to a compensable degree within a year of service, or show continuity of such symptomatology since service. Further, the preponderance of the competent evidence is against a finding that his hypertension is otherwise related to service, to include as secondary to his service-connected PTSD disability. Accordingly, entitlement to service connection for hypertension on a presumptive, direct or secondary basis is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against this claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel