Citation Nr: 18160132 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 10-17 473 DATE: December 21, 2018 ORDER Entitlement to service connection for a heart disability, to include as due to herbicide exposure, is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to herbicide exposure is remanded. Entitlement to service connection for residuals of a stroke, to include as due to herbicide exposure and secondary to a stroke is remanded. FINDINGS OF FACT 1. The Veteran failed to report, without good cause, for VA examinations scheduled in August 2017. 2. The Veteran does not have a diagnosis of ischemic heart disease, a heart disability was not shown during active service and the most probative evidence of record shows that the Veteran’s post-service heart disability is not causally related to his active service or any incident therein, to include Agent Orange exposure. CONCLUSION OF LAW The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1153, 5107 (2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from October 1966 to October 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2009 and July 2009 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Indianapolis, Indiana. The Veteran testified before a VA Decision Review Officer (DRO) at a June 2010 hearing conducted at the RO regarding the issues of entitlement to service connection for hypertension and residuals of a stroke. A transcript of that hearing is of record. The Board observes that in the appellant’s April 2010 substantive appeal (VA Form 9), he requested a Board hearing, which was subsequently scheduled in May 2018. The Veteran failed to report of the requested hearing. However, in testimony provided during the June 2010 DRO hearing, the Veteran indicated that he wished to withdraw his request for a Board hearing. In light of the forgoing, the hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2017). This matter was before the Board in July 2017 at which time it was remanded of additional evidentiary development. A review of the record shows that the RO has complied with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Service connection may be granted for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may be established on a secondary basis under 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, service connection is presumed for certain diseases if a veteran was exposed to an herbicide agent, such as Agent Orange, during active service if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2017). Exposure to Agent Orange is presumed for veterans who served in the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975. 38 C.F.R. § 3.307 (a)(6)(iii). Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 U.S.C. § 101(29)(A); 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.313(a); see also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S.Ct. 1002 (2009) (holding that a Veteran must have actually set foot within the land borders of Vietnam or been present in the inland waters of Vietnam to be entitled to presumptive service connection). Despite the presumptive regulations, a claimant may establish service connection based on exposure to Agent Orange with proof of actual direct causation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that service connection for a heart disability is warranted. He contends that the claimed disability is due to Agent Orange exposure during military service. Service treatment records show that the Veteran had service in the Republic of Vietnam. However, the records are negative for treatment or complaints of a heart disability during military service. At the time of the September 1968 military separation examination the Veteran’s heart was clinically normal and there was no finding of a heart disability. In the Veteran’s application for service connection received in October 2008, he reported that his disability occurred in 1999. The Veteran was provided a VA aid and attendance examination in December 2009. It was noted that the Veteran’s summary of problems included coronary artery disease with a date of onset in 2005. There was no treatment for the condition. The Veteran underwent a VA heart examination in March 2010. It was again noted that the Veteran’s summary of problems included coronary artery disease with an approximate date of onset in 2001. The condition was treated with medication. Following examination, the examiner opined that there was on diagnosis of ischemic heart disease based on available evidence. Private treatment records provided by the Social Security Administration (SSA) document a history of coronary artery disease. Notably, in a May 2007 private treatment record, it was reported that the Veteran had a history of coronary artery disease. In so finding, it was noted that the Veteran stated that he a myocardial infarction in 1998. He had a cardiac catherization in 1998 that showed blockage of the arteries. The Veteran reported that he was no Plavix, however, he was not recommended to have stent or cardiac surgery. The physician reported that the Veteran did not suffer from angina pain. Following evaluation, coronary artery disease, no angina, was assessed. Additionally, a July 2007 record revealed a diagnosis of hypertensive cardiovascular disease with myocardial infarction. Post-service VA clinical records do not show treatment for or a diagnosis of a heart disability. An additional VA examination was provided in February 2011. The examiner indicated that the Veteran did not have a diagnosis of ischemic heart disease. Moreover, there was no indication that the Veteran required continuous medication for a heart disability. Following examination, the examiner concluded that there is no evidence available suggesting that the Veteran has ischemic heart disease. Further, there is no evidence available suggesting that the Veteran had a myocardial infarction. This matter was before the Board in July 2017, at which time it was remanded for additional evidentiary development. Pursuant to the Board’s remand directives, the Veteran was to be provided a VA examination to determine the nature and etiology of his heart disability. A VA examination was subsequently scheduled in August 2017. However, the Veteran refused the examination and, thus, the examination was cancelled. In correspondence from the Veteran’s representative dated in November 2018, it was asserted that service connection for a heart disability is warranted. In support of this contention, the Veteran’s representative identified an internet article detailing the relationship between ischemic heart disease and Agent Orange. After a review of the evidence, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a heart disability. At the outset, the Board observes that the Veteran was scheduled for a VA examination in August 2017. However, he failed to report for the scheduled examination and has not provided good cause for doing so. Under 38 C.F.R. § 3.655(b), if entitlement to a VA benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Examples of good cause include, but are not limited to, illness or hospitalization of the claimant, death of an immediate family member. 38 C.F.R. § 3.655(a). When a claimant misses a scheduled VA examination, the Board must consider (1) whether the examination is necessary to establish the entitlement to the benefit sought, and (2) whether the claimant had good cause to miss the scheduled examination. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this case, for the reasons delineated in the Board’s July 2017 remand, a VA medical examination was necessary to clarify the nature and etiology of the Veteran’s claimed heart disability. Subsequently, a VA examination was scheduled in August 2017. Nonetheless, the Veteran refused to be examined, which the Board construes as a failure to report of the examination. Absent any explanation, the Board finds that good cause for the Veteran’s failure to report for the necessary examination has not been shown. Therefore, the Board must decide the claim based on the evidence of record. After considering the medical and lay evidence of record, the Board finds that service connection for a heart disability is not warranted. As previously noted, governing law provides for presumptive service connection based on exposure to herbicide agents such as Agent Orange in service for certain enumerated diseases. A veteran who served on land in Vietnam during the Vietnam era is presumed to have had such exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309. The Veteran’s service treatment records indicate that he served in Vietnam during the Vietnam era. Thus, he is legally presumed to have been exposed to herbicide agents during such service. However, the evidence available to the Board does not show that the Veteran has been diagnosed with ischemic heart disease during the period on appeal. The Board acknowledges that the December 2009 VA examiner noted a history of coronary artery disease. Such diagnosis was also noted by the March 2010 VA examiner. Notwithstanding, the March 2010 and February 2011 VA examiners concluded that the Veteran did not have ischemic heart disease. Although the Board attempted to confirm and clarify diagnoses related to the Veteran’s heart disability, the Veteran failed to report to the scheduled VA examination. Neither the Veteran nor his representative have provided a medical opinion confirming a diagnosis of ischemic heart disease. As such, presumptive service connection due to herbicide exposure is not legally warranted. To the extent that the Veteran asserts that his heart disability is an organic heart disease, the Board has considered whether service connection is warranted on the basis of continuity of symptoms or on a presumptive basis. However, the documented evidence of record does not indicate that the Veteran developed a heart disability during service or that there was continuity of heart symptoms since service. As set forth above, service treatment records are negative for complaints of or treatment for a heart disability. At separation from military service, the Veteran’s heart was clinically normal. As such, the Board finds that the most probative evidence establishes that hypertension was not present during active service. Notably, neither the Veteran nor the evidence suggest that his heart disability symptoms had their onset during military and have continued since that time. As such, service connection based on continuity of symptomatology is not warranted. Furthermore, the record contains no indication, lay or clinical, that the Veteran’s heart disability manifested to a compensable degree within one year of separation from active service in October 1968. In fact, the Veteran reported that he had myocardial infarction in 1998, approximately 30 years after military service. Thus, service connection for a heart disability on a presumptive basis is also not warranted. Notwithstanding the foregoing presumptive provisions, a claimant is not precluded from establishing service connection for disability due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, there is no evidence to suggest that a heart disability had its onset during active service. Instead, the available evidence indicates that the claimed condition did not develop until many years after active service separation. The Veteran has not contended otherwise. The Board observes that in the Veteran’s application for VA benefits, he indicated that the date of onset was in 1999. Moreover, the record on appeal contains no indication that any medical professional has related the Veteran’s heart disability to his active service or any incident therein. Therefore, direct service connection is not warranted. The Board observes that the Veteran’s representative identified an internet article regarding the relationship between ischemic heart disease and Agent Orange to support the service connection claim. The article, however, does not specifically address the Veteran’s unique medical history nor provide a basis for a medical opinion of record. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical articles or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships). The instant case must be decided on the basis of the individual facts in light of applicable procedure and substantive law. See 38 C.F.R. § 20.1303 (2017). Thus, while the Board has considered the medical article, it assigned limited probative weight. The Board acknowledges the Veteran’s assertion that his heart disability is related to military service. Although in some cases a layperson is competent to offer an opinion addressing the etiology of a disorder, the Board finds that, in this case, the determination of the origin of the heart disability is a medical question not subject to lay expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The condition involves a pathological process that is not readily observable to a layperson. The Board finds that in light of the non-observable nature of the pathology, the issue of the origin of the diagnosed heart disability is a medical question requiring medical training, expertise and experience. In sum, after reviewing all the evidence of record, the Board finds that the preponderance of the evidence is against the claim of service connection for a heart disability. 38 U.S.C. § 5107(b); Gilbert v. Derwinski,1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Respecting the Veteran’s hypertension and stroke residuals claims, the Board also notes that VA examinations were scheduled and that Veteran failed to report to those examinations without good cause. Notwithstanding this fact, the Board reflects that prior to remanding to obtain those examinations, the evidence of record documents that the Veteran was diagnosed with hypertension; additionally, the February 2011 VA examiner noted that the Veteran had status-post cerebral vascular accident with residual effect of expressive aphasia and cognitive deficit. Consequently, the evidence of record documents current disabilities as to those claimed disorders. Likewise, the Veteran’s presumed exposure to herbicides due to his service in the Republic of Vietnam has been conceded in this case. See 38 C.F.R. § 3.307(a)(6)(iii). During the pendency of this appeal, the National Academy of Sciences (NAS) issued a press release in November 2018 indicating that it was changing the category for hypertension from “limited or suggestive” to “sufficient” for association to herbicides. The Board, however, notes that the Secretary has not added hypertension to the list of presumptive diseases associated with herbicide exposure as of this decision. See 38 C.F.R. § 3.309(e). Therefore, although the Board cannot award service connection on a presumptive basis for hypertension at this time, VA’s duty to assist in this case requires a remand for an addendum opinion with respect to the Veteran’s hypertension as related to his herbicide exposure, despite his failure to demonstrate good cause for failing to report for his previously scheduled examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In light of the Veteran’s claims that his stroke residuals are secondary to his hypertension, that claim is intertwined with the remanded hypertension claim and must also be remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Should the examiner find that hypertension is related to the Veteran’s service, the examiner should also provide a secondary opinion regarding the Veteran’s stroke residuals. The matters are REMANDED for the following action: The AOJ should ensure that the claims file is provided to an appropriate examiner for an addendum opinion as to whether any of the Veteran’s hypertension at least as likely as not (50 percent or greater probability) began in service or within one year of discharge therefrom, or is otherwise the result of military service, to include the Veteran’s presumed herbicide exposure therein. Specifically, the examiner should consider any noted blood pressure readings in service, or within one year after discharge therefrom, as well as the notation of borderline hypertension therein. The examiner should address whether any readings and the notation of borderline hypertension during service are initial manifestations of the Veteran’s hypertension. Regarding the above opinion as to relation to herbicides, the examiner must take as conclusive fact that the Veteran is exposed to herbicides during military service; the examiner is additionally reminded that merely stating that the disease is not on the list of presumed disease related to herbicide exposure is not an adequate rationale for a negative opinion. Finally, the examiner MUST discuss the new November 2018 NAS study that indicated that hypertension had switched to the “sufficient” category, and what, if any, effect such study has on the examiner’s rationale. If and only if the examiner finds that the Veteran’s hypertension is related to military service, the examiner should also opine whether any noted stroke residuals at least as likely as not was either (a) caused by; or, (b) aggravated (i.e., chronically worsened) by the Veteran’s service-connected hypertension. The examiner is reminded that he or she must address both prongs (a) and (b) above. The examiner should also consider any lay statements of record regarding onset of symptomatology and any continuity of symptomatology since onset and/or since discharge from service. Finally, the examiner should consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale that clearly articulates the reasoning for all conclusions reached. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Jones, Counsel