Citation Nr: 18123718 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 15-28 197 DATE: August 2, 2018 ORDER Entitlement to service connection for ischemic heart disease, variously diagnosed as myocardial infarction and coronary artery disease, is granted. FINDING OF FACT The Veteran’s heart disability has been variously diagnosed as myocardial infarction and coronary artery disease, which are forms of ischemic heart disease, and ischemic heart disease is a condition that is subject to presumptive service connection as a disease associated with the Veteran’s presumed exposure to tactical herbicide agents. CONCLUSION OF LAW The criteria for service connection for ischemic heart disease, variously diagnosed as myocardial infarction and coronary artery disease, have been met. 38 U.S.C. §§ 1110, 1116, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1968 to June 1971, with confirmed Vietnam service from November 20, 1969 to November 5, 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Additional evidence was received by VA subsequent to the most recent, May 2015, statement of the case issued for the appeal herein. Specifically, such includes a July 2017 private medical record, an October 2017 heart conditions disability benefits questionnaire, and additional VA treatment records associated with the record in October 2017. The Veteran did not waive Agency or Original Jurisdiction (AOJ) review of this additional evidence. See 38 C.F.R. § 20.1304 (c) (2017). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the entirety of the additional evidence was submitted by the Veteran. Nevertheless, in light of the favorable decision below, a remand for the additional evidence to be considered by the AOJ is not warranted. The Board notes that the Veteran submitted an unsigned request for a copy of his October 2017 heart conditions disability benefits questionnaire in January 2018 and a signed request in February 2018. The record shows an April 2018 response to a follow-up inquiry from the Veteran advised him to file a Freedom of Information Act request for a copy of his claims file. When a request is filed by an individual seeking records pertaining to him or her, and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual’s appeal. 38 C.F.R. §§ 1.577 and 20.1200 (2017); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 n.5 (2008) (noting that the Board will defer action on an appeal when there is a pending request for a copy of the claims file). However, as the decision below represents a full grant of the benefit sought on appeal, there is no prejudice to the Veteran in this regard. 1. Entitlement to service connection for a heart disability The Veteran contends that he has a heart condition that should be service connected on a presumptive basis as due to in-service exposure to tactical herbicides. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). To establish service connection on a direct incurrence basis, the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain diseases may be presumed to have been incurred in service where a Veteran was exposed to dioxin-based tactical chemical herbicides (colloquially known as “Agent Orange”), while on active service. 38 U.S.C. § 1116 (2012); 38 C.F.R. §§ 3.307 (a)(6), 3.309(e) (2017). Veterans who served in the Republic of Vietnam during the Vietnam Era are presumed to have been exposed to tactical herbicide agents, even when there is no evidence of such exposure during the period of service. 38 C.F.R. 3.307 (a)(6)(iii); see also, 38 C.F.R. § 3.2 (2017). Generally, the regulation applies where an enumerated disease, such as ischemic heart disease, becomes manifest to a compensable degree at any time after active service. 38 C.F.R. § 3.307 (a)(6)(ii). Ischemic heart disease includes, among other diagnoses, acute, subacute and old myocardial infarction and coronary artery disease. 38 C.F.R. § 3.309 (e). The evidence of record includes a January 2015 heart conditions disability benefits questionnaire which endorsed diagnoses of congestive heart failure in July 2012, ventricular arrhythmia in 2013, and cardiomyopathy in 2013. An October 2017 heart conditions disability benefits questionnaire endorsed diagnoses of acute, subacute or old myocardial infarction in July 2017, coronary artery disease in 2012, congestive heart failure in 2014, cardiomyopathy in 2014, and implanted automatic implantable cardioverter defibrillator in 2016. Other diagnosis include a December 2014 VA treatment record which provided an impression of non-ischemic cardiomyopathy status post atrial flutter ablation, a January 2015 VA treatment record which endorsed a diagnosis of non-ischemic cardiomyopathy with progressive decline in left ventricular, and a February 2015 VA treatment record which endorsed a diagnosis of dilated cardiomyopathy. Further, March 2016, October 2016 and September 2017 VA treatment records endorsed, in part, diagnoses of coronary artery disease, chronic systolic congestive heart failure, and non-ischemic cardiomyopathy. Additionally, a July 2017 private nuclear stress report noted the reason for the study was coronary artery disease. Therefore, the Board finds that the Veteran has a heart disability, variously diagnosed, including as myocardial infarction and coronary artery disease. As to the Veteran’s claimed in-service exposure to herbicides, the Board notes that the Veteran’s service treatment records establish as a matter of historical fact that he served within the territorial confines of the Republic of Vietnam during the Vietnam War. Specifically, his service personnel records, including his form DD-214, reflect service in Vietnam from November 1968 to November 1970. In light of this evidence, the Veteran has established service within the Republic of Vietnam during the Vietnam Era, he is therefore presumed to have been exposed to dioxin-based tactical chemical herbicides. See 38 C.F.R. § 3.307 (a)(6)(iii). The January 2015 VA examiner found none of the Veteran’s heart conditions qualified within the generally accepted medical definition of ischemic heart disease. Conversely, the October 2017 VA examiner found the Veteran’s myocardial infarction qualified within the generally accepted medical definition of ischemic heart disease. Thus, the Veteran’s has a diagnosis of myocardial infarction that qualifies within the generally accepted medical definition of ischemic heart disease, as such was endorsed by the October 2017 examiner. Further, myocardial infarction as well as coronary artery disease are specifically enumerated as examples of ischemic heart disease as defined under 38 C.F.R. § 3.309 (e). As the Veteran’s heart disability includes diagnoses of myocardial infarction and coronary artery disease, as types of ischemic heart disease, and thus are associated with exposure to certain tactical herbicide agents, it is presumed that these disabilities were incurred in service even without evidence of the disability during service. See 38 C.F.R. § 3.309 (e). Further, the record shows that such disability is manifested to a compensable degree under the relevant rating criteria found in 38 C.F.R. § 4.104, Diagnostic Code 7005. Therefore, resolving any remaining doubt in the Veteran’s favor, the Board concludes that service connection for ischemic heart disease, variously diagnosed as myocardial infarction and coronary artery disease, is warranted on a presumptive basis under 38 C.F.R. §§ 3.307 (a)(6) and 3.309(e). See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel