Citation Nr: 20046587 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 17-03 005 DATE: July 13, 2020 ORDER Service connection for a heart disability, to include non-ischemic cardiomyopathy and coronary atherosclerosis, due to herbicide exposure, is denied. FINDING OF FACT A heart disability was not present in service or for years thereafter, and is not etiologically relate to service, including herbicide exposure. CONCLUSION OF LAW A heart disability was not incurred or aggravated during active duty and its incurrence or aggravation during such service may not be presumed. 38 U.S.C. §§ 1101, 1110, 1112, 1116 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from October 1969 to July 1974. The Veteran testified before the undersigned at an April 2019 Video Conference hearing. The hearing transcript is of record. In July 2019, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § § 1110; 38 C.F.R. § 3.303 (a). Establishing 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) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). The theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In relevant part, 38 U.S.C. § 1154 (a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic disabilities, including organic heart disease, to a degree of at least 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. See 38 C.F.R. § 3.309 (e). The term "herbicide agent" means a chemical in an herbicide, including Agent Orange, used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. In addition, a veteran who, during active military, naval, or air service, served between April 1, 1968, and August 31, 1971, in a unit that, as determined by the Department of Defense, operated in or near the Korean DMZ, in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such serve to an herbicide agent, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. See also 38 C.F.R. § 3.814(c)(2). 38 C.F.R. § 3.307 (a)(6)(iv). In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, a veteran must have one of the diseases enumerated in § 3.309(e). When a veteran is found not to be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary 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 the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § § 5107 (2012); 38 C.F.R. § 3.102 (2019); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Service connection for a heart disability, to include non-ischemic cardiomyopathy and coronary atherosclerosis, due to herbicide exposure The Veteran contends that he has a currently diagnosed heart disability, due to his exposure to Agent Orange while serving aboard the USS Sphinx ARL 24 in the inland waterways of Vietnam. The Veteran's personnel records show that he served aboard the USS Sphinx (ARL-24) from March 1, 1971 to September 30, 1971, which travelled in inland waterways in and around Vietnam, which for VA purposes, constitutes service in the Republic of Vietnam during the Vietnam era. Therefore, the Veteran's exposure to herbicide agents used in Vietnam is presumed. 38 C.F.R. § 3.307 (a)(6)(iii). However, VA regulations do not provide for presumptive service connection, based on Agent Orange exposure, for coronary atherosclerosis. See 38 C.F.R. § 3.309 (e) (2019). Thus, a presumption of service connection based upon herbicide exposure in Vietnam is not warranted for non-ischemic cardiomyopathy. 38 C.F.R. §§ 3.307 (a)(6). The Veteran could, nonetheless, establish service connection with evidence of direct incurrence. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). A heart disability was not diagnosed until many years after service, and there is no competent evidence to establish that it is due to any event or incident of the Veteran's period of active duty. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis related to a heart disorder, including non-ischemic cardiomyopathy or coronary atherosclerosis. Post-service treatment records show the Veteran was diagnosed with non-ischemic cardiomyopathy in 2010, many years after his discharge from service. He was also later diagnosed with hypertensive heart disease, obstructive lower extremity atherosclerosis and coronary atherosclerotic disease (coronary atherosclerosis). See June 2019 statement from private physician, J. C. R., M.D. An April 2012 VA examiner opined that the Veteran’s diagnosed non-ischemic cardiomyopathy is not an ischemic heart condition and therefore, is not one of the recognized Agent Orange presumptive diseases. Additionally, based on the absence of any treatment or diagnosis of a cardiac condition in the Veteran’s service medical records, the examiner concluded that the Veteran’s non-ischemic cardiomyopathy is not directly linked to his active military service. The examiner also noted an April 2010 cardiology consult indicating that the Veteran’s cardiomyopathy is likely a combination of alcohol and hypertension. See Heart Conditions Disability Benefits Questionnaire dated April 2012. In June 2019, the Veteran submitted the above-noted statement from his treating physician, J.C.R., M.D., explaining his familiarity with the Veteran’s medical history and his opinion that there is a biologic link between the Veteran’s Tetrachlorodibenzodioxin (TCDD), the toxic contaminant in the Agent Orange herbicide, exposure in Vietnam and his cardiovascular challenges of hypertensive heart disease, obstructive lower extremity atherosclerosis, and non-obstructive coronary atherosclerosis. He explained that TCDD is a coplanar dioxin, which compromises our health by pathologically binding the aryl hydrocarbon receptor. Activation of the aryl hydrocarbon receptor initiates phase I detoxification, which generates free radical species, which can cause oxidative stress, the driving force in atherosclerosis and other diseases. He also noted that the problem with TCDD and related chemicals is that they are not subject to phase 2 detoxification, instead, they are basically stuck in phase I, perpetually generating free radical molecules, and to make matters worse, these agents are transported in the circulation within the LDL particle, thus, ferried into the artery wall. Expression of the aryl hydrocarbon receptor rises in relation to the complexity of atherosclerosis, and this combination leads to oxidative stress, driving forward disease, and toxicity on the basis of TCDD is essentially lifelong. Dr. J. C. R. also explained that the Veteran suffers from lower extremity vascular atherosclerosis, which is essentially the same process as atherosclerotic coronary disease, the heart disease that has been linked to Agent Orange. See Statement from J.C.R., M.D. of Comprehensive Heart Care, Inc. dated June 2019. In an effort to reconcile the conflicting medical opinions of record, the Board remanded the claim in July 2019, to afford the Veteran another VA heart conditions examination and opinion, which was conducted in November 2019. The November 2019 VA examiner opined that the Veteran's diagnosed non-ischemic cardiomyopathy was not related to Agent Orange exposure during active duty because non-ischemic cardiomyopathy is not considered one of the diseases associated with Agent Orange exposure under VA regulations. The examiner did not consider whether the Veteran's non-ischemic cardiomyopathy was directly related to Agent Orange exposure in service. Therefore, the opinion is incomplete and inadequate for evaluation purposes. The Board notes that while the private physician offered an extensive rationale for his opinion, it was ultimately just a generalized opinion to the effect that the chemical in Agent Orange “can” result in stress to the cardiovascular system, leading to atherosclerosis and other diseases. He does not identify any specific information about this particular Veteran to show why the Agent Orange affected his particular development of hypertensive heart disease, obstructive lower extremity atherosclerosis or non-obstructive coronary atherosclerosis. As such, the Board finds that Dr. J.C.R.’s opinion lacks probative value, and is not enough, by itself, to grant service connection. As the Board has found the June 2019 private opinion lacking in probative value and the November 2019 VA opinion is inadequate, the only competent medical opinion of record comes from the April 2012 VA examiner, who, for the reasons noted above, found that the Veteran’s currently diagnosed non-ischemic cardiomyopathy is not related to his active military service, including herbicide exposure in service. Service connection is possible for disabilities first diagnosed after service, and the lack of evidence of a disorder in the service treatment records is not fatal to a claim for service connection. However, given that the Veteran’s claim is actually based on exposure to herbicides, and he has not reported a continuity of symptomatology beginning in service, the Board finds that the examiner’s opinion is supported, and another opinion is not necessary. The Board notes that it may favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467 (1993). There is no evidence, VA or private, otherwise linking a current heart disability, including non-ischemic cardiomyopathy or coronary atherosclerosis, to service. The Veteran has not specifically reported a continuity of symptomatology beginning in service and there is no other evidence, VA or private, which indicates that the Veteran’s heart disability may be related to his active military service. With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of a heart disability, the Board notes that this passage of time weighs significantly against a finding of direct service connection for a heart disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The presumption of service connection for chronic diseases diagnosed within one year following discharge from active duty is also not applicable to this case because the evidence demonstrates that the Veteran’s heart disease was initially shown more than one year after the Veteran's discharge from service. The Board acknowledges the Veteran's assertion that his heart disability is due to events during his active service. However, while the Veteran is competent to report the observable symptoms of a disability, and in certain situations a lay person may be competent to establish the etiology of a disability; in the present case, the Veteran is not competent to provide a nexus between his currently diagnosed non-ischemic cardiomyopathy, coronary atherosclerosis, or any other currently diagnosed heart disability and his active service or events therein. Such an opinion would require medical expertise as it would require clinical testing of his blood pressure and interpretation of clinical findings as well as assessing the relevance of any noted symptomatology. Thus, the Board finds that the Veteran, as a layperson, is not qualified to render an opinion concerning the cause of his heart disability. 38 C.F.R. § 3.159 (a)(1), (2) (2019). (Continued on the next page)   For the reasons and basis stated above, the Board finds that service connection for a heart disability, including non-ischemic cardiomyopathy and coronary atherosclerosis on a direct or presumptive basis is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.