Citation Nr: 1808284	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  13-21 765A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for coronary artery disease.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife


ATTORNEY FOR THE BOARD

A. Santiago, Counsel



INTRODUCTION

The Veteran served on active duty from March 1972 to August 1974.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In June 2016, the Veteran testified at a Board hearing conducted at the Board's Central Office in Washington, D.C., before the undersigned Veterans Law Judge.

In October 2016, the Veteran confirmed that he wishes to have Disabled American Veterans represent him in this case.

In November 2016, the Board reopened the coronary artery disease service connection claim and remanded the issue for additional development.


FINDING OF FACT

The Veteran's coronary artery disease did not manifest during service and is not related to service.


CONCLUSION OF LAW

The criteria for service connection for coronary artery disease have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  "To establish a right to compensation for a present disability, 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'-the so-called 'nexus' requirement."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Certain chronic diseases, including arteriosclerosis and cardiovascular-renal disease, may be presumed to have been incurred during service if they become disabling to a compensable degree within one year of separation from active duty.  38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Finally, service connection can be established based on herbicide exposure.  38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6).  For VA purposes, an "herbicide agent" includes the chemicals 2,4-D; 2,4,5-T and its contaminant TCCD; cacodylic acid; and picloram.  38 C.F.R. § 3.307(a)(6)(i).  For the purposes of determining herbicide exposure, a veteran who served in qualifying locations is presumed to have been exposed to an herbicide agent.  38 C.F.R. § 3.307(a)(6)(iii).  If the veteran is presumed to have been exposed to herbicides, the veteran is entitled to a presumption of service connection for certain disorders.  See 38 C.F.R. § 3.309(e).  Ischemic heart disease is one of those diseases listed in 38 C.F.R. § 3.309(e).

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 Veteran.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Analysis

At the June 2016 Board hearing, the Veteran contended service connection for his heart disease is warranted because, during service, he was exposed to herbicide agents as result of being stationed at Air Force bases in Hawaii.  In an earlier March 2005 statement, he contended that he had high cholesterol in service that caused his current heart disease.

A review of the Veteran's service treatment records (STRs) reveals no diagnosis of or treatment for heart disease.  At the Board hearing, the Veteran testified to seeking treatment at the Houston VA in 1976 or 1977, and in the March 2005 statement, the Veteran indicated that he was treated for heart disease since 1975, listing several hospitals at which he sought treatment.  The Veteran also stated that he could only get his records back to 1991.  Despite being given the additional opportunity to identify and submit such records prior to 1991, the medical evidence of record first shows that the Veteran was treated for heart issues (chest pain and rule out myocardial infarction) in 1991, possibly as far back as 1990.  Therefore, the appeal turns on the nexus element of the claim for the heart disease that the evidence shows was first treated approximately 16 to 17 years after service.

In substantial compliance with the Board's November 2016 remand, the Veteran was afforded a VA examination in October 2017.  The VA examiner reported diagnoses of atherosclerotic cardiovascular disease and coronary artery disease, both diagnosed in 2003 with a bypass graft in 2004.  The examiner provided a negative nexus opinion, after considering the Veteran's medical history and contentions regarding in-service exposure to herbicide agents.  As reasons for such conclusion, the examiner reported the following evidence: strong family history of cardiac disease; years of abuse of illegal substances and alcohol; lack of evidence, apart from lay evidence, in his military records of Agent Orange exposure; and most importantly, the bases at which the Veteran asserts herbicide agent exposure are not recognized in the VA list as Agent Orange exposure locations.

In support of his claim, the Veteran submitted an opinion from B.C., M.D., who treated the Veteran for several years and a buddy statement received in January 2012.  Dr. B.C. stated that he has no reason to believe the Veteran's assertions regarding his military duties exposing him to Agent Orange are false.  However, Dr. B.C. also stated that he did not have access to the Veteran's service record to verify such assertions.  The buddy statement asserts that the Veteran duties in service involved spraying herbicide agents.

In accordance with the Board's remand, an Agent Orange verification review was conducted by Joint Services Records Research Center (JSRRC), resulting in the issuance of a September 2017 memorandum, which concluded that the Veteran was not exposed to herbicide agents in service as to warrant the herbicide agent presumption.  After a review of the Veteran's history, to include his statements regarding his service, the JSRRC memorandum states that Agent Orange or tactical herbicides were not stored, used, or sprayed at the Air Force base where the Veteran performed his duties.  Additionally, a review of the U.S. Department of Defense Programs for the Testing Evaluation and Storage of Tactical Herbicides and the Department of Defense listings of herbicide spray areas and test sites outside the Republic of Vietnam did not include Hickam Air Force Base, where the Veteran was assigned, as shown on his DD Form 214.

The Board finds that any determination as to the nature and etiology of coronary artery disease is medical complex in nature.  See Jandreau v. Nicholson, 492 F.3d 1372, 1977 (Fed. Cir. 2007).  Thus, the Veteran, as a layperson, is not competent to offer a medical opinion as to the onset or cause of his the heart disease because he has not demonstrated that he possesses the requisite specialized knowledge.  Such an opinion requires medical expertise, and therefore, the Veteran is not competent to offer a medical opinion regarding such a complex medical question.

Despite his contentions regarding exposure to herbicide agents in the military, the Veteran has not submitted persuasive evidence showing such exposure.  A veteran bears the evidentiary burden to establish all material elements of a claim.  See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  Unlike many areas of law, the claimant in the VA benefits system, however, has the burden of persuasion only to an equipoise standard or an "equality of the evidence" standard with the help of VA in developing the claim.  See Skoczen v. Shinseki, 564 F.3d 1319, 1324 (Fed. Cir. 2009) (citing 38 U.S.C. § 5107(b)).

Nevertheless, the Veteran's opinion regarding the etiology of his heart disease is not competent evidence and is afforded no probative weight.  Moreover, the VA examiner's opinion considered the Veteran's contended theories and service records (unlike Dr. B.C.), and thus, the Board affords such opinion great probative weight and finds it persuasive regarding the nexus element, on which this appeal turns.  The VA examiner specifically attributed the Veteran's heart disease to genetic and lifestyle factors.  Additionally, despite the lay assertions to the contrary, the Board finds the September 2017 memorandum persuasive regarding the Veteran's lack of in-service herbicide agent exposure that would warrant the 38 C.F.R. § 3.307(a)(6) presumption, as the memorandum was based on extensive JSRRC research with consideration of the Veteran's contentions.  Thus, both the in-service "injury" element of the claim as it pertains to herbicide exposure and the nexus element have not been substantiated here.

In sum, the Board must conclude that the preponderance of the evidence is against the claim, and thus, the benefit-of-the-doubt doctrine is not applicable here; therefore, service connection for coronary artery disease is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).




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ORDER

Service connection for coronary artery disease is denied.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs