Citation Nr: 18156867 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 10-24 620 DATE: December 11, 2018 ORDER Service connection for Barrett's metaplasia, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for a lung disorder, including chronic obstructive pulmonary disorder (COPD), asthma, and a nodule in the right lower lung, to include as due to claimed herbicide agent exposure, is remanded. Entitlement to service connection for a heart disorder, to include coronary artery disease, other ischemic heart disease, hypertensive heart disease, and heart valve abnormalities identified on echocardiogram, to include as due to herbicide agent exposure and as secondary to the Veteran’s service-connected posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for hypertension, to include as due to herbicide agent exposure and as secondary to the Veteran’s service-connected PTSD, is remanded. FINDINGS OF FACT 1. Although the diagnosed Barrett’s metaplasia, a type of damage to the Veteran’s lower esophagus, has now been resolved and is no longer present at the time of this decision, it was formerly present during the pendency of this appeal. 2. The Veteran’s Barrett’s metaplasia has not been shown to be etiologically related to a disease, injury, or event during service, including his presumed herbicide agent exposure in Vietnam. CONCLUSION OF LAW The criteria to establish service connection for Barrett’s metaplasia are not met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307(2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1964 to October 1967. His records reflect combat duty in the Republic of Vietnam. The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in October 2016 to present testimony on the issues on appeal. This appeal was subject to a prior remand by the Board in April 2017 to ensure compliance with due process requirements. Although further development remains for the three service connection issues remanded again herein, with respect to the claim of service connection for Barrett’s metaplasia the evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has been returned to the Board for further appellate review. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for Barrett’s metaplasia is denied Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service event, injury, or disease and the current disability. 38 C.F.R. § 3.303; see Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran sought private treatment for gastroesophageal reflux disease, also known as GERD, with an elective endoscopic procedure in December 2007. Barrett’s esophagus was identified during the procedure and a biopsy confirmed the same. Private treatment record, December 2007. The Veteran then underwent ablative esophageal surgery in or around May 2009. See, e.g., VA treatment records, January 2014; Statement in support of claim, April 2009. As of March 2015, the Veteran was found to have achieved “100% clearance of prior Barrett’s metaplasia.” Private endoscopy report, March 2015. Although the condition of Barrett’s metaplasia has now resolved and is not shown to continue at the time of this decision, it was present at the time the claim for VA disability compensation was filed and during the period of this appeal, at least from the period between diagnosis in 2007 and the ablative surgical procedure in 2009. Thus, the element requiring a current disability for the purpose of establishing entitlement to service connection is met. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran’s service treatment records contain no evidence of any in-service disease, injury, or event regarding the Veteran’s lower esophagus. Upon separation examination in August 1967, no abnormalities were noted and the Veteran explicitly denied experiencing frequent indigestion or other stomach troubles, which is relevant as the Veteran’s esophageal conditions have been associated with his symptoms of heartburn and reflux. See, e.g.,VA examination, June 2017. Although service treatment records document episodes of vomiting in October 1966 and June 1967 that appear to have quickly resolved, there were no positive findings of any disease or injury to the lower esophagus. Instead, the Veteran asserts that his Barrett’s esophagus diagnosis is a result of his exposure to herbicide agents during service in Vietnam. Service connection can also be established in certain circumstances based on exposure to specific chemical herbicide agents used in support of military operations in the Republic of Vietnam and along the Korean demilitarized zone. 38 C.F.R. § 3.307(a)(6). This Veteran is shown to have served in Vietnam, and is therefore entitled to the presumption that he was exposed to herbicide agents during that Vietnam service. Id. However, Barrett’s esophagus is not among the exclusive list of diseases associated with exposure to herbicide agents for the purposes of granting service connection on a presumptive basis. 38 C.F.R. § 3.309(e). As such, service connection for Barret’s esophagus is not warranted on a presumptive basis, but the Veteran may still be entitled to service connection under a direct theory of entitlement. 38 C.F.R. §§ 3.303, 3.307; see Combee v. Brown, 34 F. 3d 1039, 1042 (Fed. Cir. 1994). To achieve service connection on a direct basis, the Veteran must submit competent evidence that his Barrett’s esophagus disability is attributable to his presumed herbicide agent exposure, or to some other injury or event during service. The record does not contain such evidence. Instead, a VA examiner in June 2017 opined that the Veteran’s Barrett’s metaplasia was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event or illness. The examining physician noted that the Veteran’s military enlistment exam, separation exam, and service treatment records were negative for this condition that was first diagnosed in 2007, about 40 years after his military service, and that the condition would not be silent for 40 years if it arose due to “military service and/or Agent Orange exposure.” VA opinion, June 2017. The examiner cited other risk factors including a 40-year smoking history, alcohol use prior to 2007, and a family history of the condition as probable risk factors for this Veteran developing the condition. The Veteran has submitted no other positive evidence linking his Barrett’s metaplasia to his presumed exposure to herbicide agents in Vietnam, such as that commonly known as Agent Orange. The Veteran as a lay person is not competent to provide an opinion as to the relationship between service and the claimed disability. Based on the negative medical opinion by the VA examiner in June 2017, and the absence of competent and probative positive evidence of a relationship between the diagnosed condition and the Veteran’s military service, the evidence weighs against the claim. Service connection for Barrett’s metaplasia must be denied. 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a lung disorder, including COPD, asthma, and a right lower lung nodule, to include as due to claimed herbicide agent exposure, is remanded. The Veteran initially sought service connection for “lung problems.” Statement in support of claim, December 2007. However, considering relevant case law and the multiple lung conditions reflected in the Veteran’s medical treatment records, this claim has been recharacterized as shown above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a Veteran makes a claim for a specific disease or condition, he is seeking service connection for the symptoms presented by that condition regardless of how those symptoms are diagnosed or labeled). After the Board’s previous remand for evidentiary development, and the resulting medical examination of the Veteran’s lung condition in June 2017, the Veteran’s representative potentially raised a new theory of entitlement in the October 2018 appellate brief. The Veteran had previously attributed his claimed lung problems to his presumed herbicide agent exposure in Vietnam, and the claim for service connection was developed on this basis. However, in October 2018, the representative noted a March 1996 private treatment report in which the Veteran was evaluated for shortness of breath, discussing a history of asthma, as well as prior asbestos and chemical exposures in multiple civilian industrial occupations. Neither the private treatment report, the Veteran, nor his representative directly assert there was any asbestos exposure during the Veteran’s military service. His service personnel records reflect that he served in the U.S. Army as an infantryman and as a meat cutter in the Quartermaster Corps, neither of which has a known likelihood for exposure to asbestos products. However, the representative asserts that the October 2017 VA opinion is incomplete because the examiner did not address the Veteran’s asbestos exposure. The Board must liberally construe the Veteran’s arguments, and those put forth on his behalf, and as such, it appears the Veteran is attempting to assert a theory of entitlement to service connection based upon asbestos exposure during his military service, as opposed to his civilian career. Clarification on this matter is appropriate before a decision is reached, and if the Veteran is asserting military asbestos exposure, then the appropriate evidentiary development is necessary. In addition to the above, the Board cannot make a fully-informed decision on the issue of service connection for a lung disorder because no VA examiner has opined whether a diagnosed lung disorder other than COPD and asthma, including the right lower lung nodule are attributable to his military service including the various herbicide and/or asbestos exposured potentially claimed therein. An addendum opinion is necessary. 2. Entitlement to service connection for a heart disorder, to include ischemic heart disease and hypertensive heart disease is remanded. The most recent VA examination in June 2017 reflects a diagnosis of hypertensive heart disease. The separate medical history section of this report states “Coronary artery disease (CAD) Dx with heart problems 1989/1990. Dx Atherosclerosis at that time. No ISHD” [interpreted as an acronym for ischemic heart disease]. The examiner then responded “no” to the question “Do any of the Veteran’s heart conditions qualify within the generally accepted medical definition of ischemic heart disease?” VA examination, June 2017. However, for VA purposes ischemic heart disease is defined as including, but not limited to, atherosclerotic cardiovascular disease including coronary artery disease and coronary spasm. 38 C.F.R. § 3.309(e) (2017). The particular diagnostic label for the Veteran’s heart condition is relevant here as only certain conditions are eligible for service connection on a presumptive basis as diseases associated with exposure to herbicide agents. Other heart diseases are not eligible for this presumption. The Veteran has received multiple diagnoses of various heart conditions in or near the present appeals period, including ventricular hypertrophy, mitral and tricuspid regurgitation, hypertensive heart disease, possible cardiomyopathy and others. See, e.g., Echocardiogram report, July 2006; VA & private treatment records, December 2007-present. The Board cannot make a fully-informed decision on the issue of service connection for a heart disorder because the record is incomplete. An additional medical opinion is necessary to establish whether any currently diagnosed heart condition, including hypertensive cardiovascular disease or other diagnosed condition is at least as likely as not attributable to the Veteran’s active service, or to his service-connected PTSD. An opinion is also necessary to clarify which, if any, of the Veteran’s current heart disabilties constitutes ischemic heart disease. 3. Entitlement to service connection for hypertension is remanded. The Board cannot make a fully-informed decision on the issue of service connection for hyptertension because no VA examiner has adequately opined whether the Veteran’s diagnosed hypertension is proximately due to or aggravated by his service-connected PTSD. These matters are REMANDED for the following action: 1. Contact the Veteran for clarification to determine if he is asserting that, in addition to his herbicide agent exposure, his claim of service connection for a lung disorder is also based on exposure to asbestos during his military service, as opposed to asbestos exposure during his civilian career. If so, record any details provided by the Veteran regarding the claimed military asbestos exposure (when, where, how, etc.). 2. Obtain an addendum opinion regarding whether any diagnosed lung disorder present since December 2007, including asthma, COPD, and the right lower lung nodule identified on Chest CT in November 2007, is at least as likely as not related to the Veteran’s military service, including his claimed in-service herbicide agent exposure, (and his exposure to asbestos ONLY IF the Veteran credibly asserts asbestos exposure occurred during his active military service). 3. Obtain an addendum opinion regarding whether any of the Veteran’s diagnosed heart disorders, specifically including hypertensive heart disease or his identified valve disorder, is at least as likely as not related to the Veteran’s active military service, including his presumed exposure to herbicide agents during his service in Vietnam. The examiner is reminded that although a particular heart condition may not be defined as ischemic heart disease that is presumptively linked to herbicide agent exposure, an opinion is still needed as to whether this Veteran’s condition is attributable to his active service, including any claimed toxic exposure during service. A rationale that only states the Veteran’s heart condition is not a presumptive disease is not an adequate opinion. The examiner is also asked to clarify the potential discrepancy in the June 2017 VA examination report which references a history of “coronary artery disease” and a prior diagnosis of atherosclerosis, but finds no ischemic heart disease, and no current condition that qualifies within the generally accepted medical definition of ischemic heart disease, although both coronary artery disease and atherosclerotic cardiovascular disease are considered ischemic heart diseases for VA purposes. Please clarify. To this end, the examiner’s attention is invited to the December 19, 2008 Chest CT that identified atherosclerosis, as well as the Veteran’s subsequent private cardiology records which do not appear to identify atherosclerosis. The examiner should also opine whether any diagnosed heart disability is at least as likely as not (1) proximately due to the Veteran’s service-connected PTSD, or (2) aggravated or worsened beyond its natural progression by service-connected PTSD. (Continued on the next page)   4. Obtain an addendum opinion regarding whether the Veteran’s hypertension is at least as likely as not (1) proximately due to the Veteran’s service-connected PTSD, or (2) aggravated or worsened beyond its natural progression by service-connected PTSD. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald