Citation Nr: 1808292 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 12-32 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a heart disability that includes ischemic heart disease (IHD) as a result of exposure to herbicides. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Franklin, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is transferred to the RO in Houston, Texas. In May 2014, the Veteran testified before the Board during a video conference hearing. A transcript of that proceeding is of record. This hearing was before a now-retired judge (VLJ). In an August 2017 correspondence, the Veteran was given the opportunity to request another hearing. In September 2017, the Veteran responded to the letter, and declined the opportunity for another hearing. In August 2015, service connection was granted for posttraumatic stress disorder, tinnitus, and bilateral hearing loss. As this constitutes a complete grant of benefits on appeal with respect to those issues, they are no longer on appeal. See A.B. v. Brown, 6 Vet. App. 35 (1993). In February 2015, the Board remanded this matter for further development. Thereafter, in May 2016, the Board denied service connection for the claimed disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). On March 3, 2017, the Court granted a Joint Motion for Remand (JMR) on the basis that the Board erred in its May 2016 decision when it relied on an inadequate VA medical examination report to deny the Veteran's claim. In September 2017, the Board again remanded this matter for further development to include a VA examination. As will be discussed in greater detail below, substantial compliance with the Board's remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The weight of the evidence is against a finding that the Veteran has a heart disability that includes ischemic heart disease as defined by VA regulations. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. Under 38 U.S.C. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining that evidence which is necessary to substantiate his claim. All service treatment records, VA treatment records, and private medical treatment records identified by the Veteran have been obtained. Furthermore, the Veteran testified at a Board hearing and a transcript of the hearing is of record. In addition, as noted in the introduction, the Veteran was offered the opportunity to appear for new hearing after the Board hearing VLJ retired. The Veteran notified the Board that he declined the opportunity for a new hearing. Pursuant to the Board's September 2017 remand, the Veteran was afforded a VA examination in October 2017. The Veteran contends in his October 2017 statement in support of claim that he was unable to determine the validity of the medical opinion because the December 2017 supplemental statement of Claim (SSOC) did not include the "credentials". The Board notes that neither the Veteran nor his representative has introduced any medical evidence to contradict the examiner's conclusions. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed. Here, the VA examiner reviewed the file, examined the Veteran and provided rationale for his findings. Thus, the Board finds the examination is adequate to decide the Veteran's heart disability claim. Furthermore, it appears that the Veteran further contends that the VA examiner should have provided an opinion regarding the relationship of all of his health problems in association with his in service exposure to Agent Orange. The Board acknowledges that the Veteran meets the requirements for a presumption of herbicide exposure. 38 C.F.R. § 3.307. However, VA has determined that presumption of service connection based on exposure to herbicides used in Vietnam is not warranted for any conditions other than those for which VA has found a positive association between the condition and such exposure. Here, other than service connection for a heart disability to include ischemic heart disease, the Veteran is not claiming service connection for any of the other presumed conditions. 38 C.F.R. § 3.309(e). Thus, the Board finds that the VA examiner adequately examined the Veteran for a heart condition and provided the requested opinion regarding whether an association exists between exposure to herbicides and the Veteran's claimed heart condition. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, as the Veteran was provided with the October 2017 examination, substantial compliance with the Board's September 2017 remand directives has been achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. Service Connection The Veteran claims that he developed a heart disability to include IHD, as the result of being exposed to herbicides while on active duty in Vietnam. During the Board hearing, the Veteran testified that he was diagnosed with cardiomyopathy. Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a presumptive basis for exposure to certain herbicide agents for Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975. 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307. Additionally, VA has determined that specific conditions are associated with herbicide agent exposure, including in pertinent part, ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina). 38 C.F.R. § 3.309(e). Additionally, the Veteran meets the requirements for a presumption of herbicide exposure. 38 C.F.R. § 3.307. Ischemic Heart Disease is presumed to be related to herbicide exposure if manifested any time after service. However, while ischemic heart disease is an herbicide presumptive disease, the evidence of record reveals that the Veteran has not been diagnosed with such. The threshold question in any claim seeking service connection is whether the Veteran, in fact, has the disability for which service connection is sought. The Board finds that there is no evidence showing actual diagnosis of ischemic heart disease. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran's entrance and separation exams are silent for complaints of heart problems or a diagnosis of ischemic heart disease. A post-service March 2014 private treatment note indicated that the Veteran denied chest pains and shortness of breath and that no evidence of carotid disease by Doppler testing was found on February 2014. March 2014 private treatment records also reveal a normal myocardial perfusion study with normal LV function. The March 2017 Joint Motion Remand (JMR) states that the May 2015 VA examiner initially noted that a May 28, 2015, echocardiogram showed mild left ventricular hypertrophy. The examiner also stated that the Veteran had normal left ventricular size and wall thickness. Additionally, the VA examiner later stated that there was no evidence of cardiac hypertrophy. Consequently, as these findings appear to be inconsistent regarding whether the Veteran has a current heart disability, remand was warranted and the Veteran was afforded a new October 2017 VA examination to determine the nature and etiology of any heart disabilities. The Veteran was afforded a recent VA examination in October 2017. The examiner noted that he examined the Veteran in person and reviewed the claims file. He reported that the Veteran denied chest pains, shortness of breath and heart palpitations. Upon completion of diagnostic tests, the examiner found that the Veteran's echocardiogram was normal. The EKG confirmed sinus bradycardia and his LV function are preserved. The examiner provided a medical opinion and specifically stated that the Veteran does not have evidence of ischemic heart disease. The examiner diagnosed the Veteran with sick sinus syndrome. The examiner determined that the Veteran has symptomatic bradycardia which causes dizziness. A pacemaker was recommended to the Veteran but he refused. The examiner reported that it is less likely that the Veteran's sick sinus syndrome is due to herbicide exposure as he does not have ischemic heart disease. In addition, the examiner explained that sick sinus syndrome affects men and women equally, and can occur at any age. But most cases of sick sinus syndrome occur in people over age 70; because aging tends to slow the heart rate and lower SA node function. Here, the Veteran n over the age of 70. The Board acknowledges that treatment records note, abnormal EKG left ventricular hypertrophy and sinus bradycardia. See August 2015 VA Cardiology Consult (noting an assessment of left ventricular hypertrophy); October 2012 Treatment Record of Doctor S.T. In addition, March 2014 private treatment note shows abnormal ECG and bradycardia diagnosis. However, the recent October 2017 examiner concluded that the Veteran has symptomatic bradycardia which causes dizziness and that the Veteran does not have a diagnosis of ischemic heart disease. The Board notes that the Veteran testified at his Board hearing that he believes he has been diagnosed with a heart disability, cardiomyopathy. See Board Hearing ` Further, while the Veteran is competent to relay a diagnosis from a medical professional, the Board concludes that the report of the October 2017 VA examiner is far more probative than the Veteran's equivocal statement that he believes that he was diagnosed with cardiomyopathy. Indeed, no medical treatment record notes a diagnosis of cardiomyopathy. In fact, the March 2014 private treatment records noted a normal myocardial perfusion study. Further, it is apparent from the October 2017 VA examination report that the examiner findings resulted from diagnostic testing that diagnosed the Veteran with symptomatic bradycardia (which is consistent with the record). The test results did not include a diagnosis of cardiomyopathy. It is unclear how, if at all, the purported diagnosis of cardiomyopathy was rendered. Thus, the Board concludes that the weight of the evidence is against a finding that an ischemic heart disease has been diagnosed. In the absence of disability, service connection is not warranted. The case law is well settled on this point. In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To the extent that the Veteran asserts that his dizziness is indicative of a continuing heart disability, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). However, once the threshold of competency is met, the Board must consider how much of a tendency a piece of evidence has to support a finding of the fact in contention. Not all competent evidence is of equal value. The Board finds the clinical evidence more probative than the Veteran's statements. The VA examiner is a medical professional and was able to examine the Veteran, utilize diagnostic testing and review the overall record, including the Veteran's history and opinions. For a disability to be service-connected, it must be present at the time a claim for VA disability compensation is filed, or during, or contemporary to the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). As the medical evidence of record, including private treatment records and the VA examination reports, do not show that the Veteran has been diagnosed with ischemic heart disease or other specified forms of heart disease related to herbicide agent exposure, the Board finds that service connection is not warranted. Congress has specifically limited entitlement to service connection to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). The evidence during or contemporary to the pendency of this claim does not show that it is at least as likely as not that the Veteran has a diagnosis of ischemic heart disease for which service connection can be granted. Accordingly, the Board finds that the preponderance of the evidence is against a claim for direct, secondary, or presumptive service connection for ischemic heart disease and the claim must be denied. 38 U.S.C. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a heart disability, to include ischemic heart disease as due to exposure to herbicides is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs