Citation Nr: 21000219 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-25 362 DATE: January 4, 2021 ORDER Entitlement to service connection for status-post viral cardiomyopathy with cardiac transplant is denied. REMANDED Entitlement to service connection for a cardiac disability, other than status-post viral cardiomyopathy with cardiac transplant, to include as due to tactical herbicide exposure, is remanded. FINDING OF FACT The Veteran’s 2008 heart transplant was not caused by ischemic heart disease and is not otherwise related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for status-post viral cardiomyopathy with cardiac transplant have not been met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1963 to March 1964, September 1966 to September 1968, and January 1971 to June 1988, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2019 and June 2020 and was remanded for additional development. Although the Veteran’s claim was previously phrased as a single issue the issue has been bifurcated as indicated above in light of the multiple diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Service connection for status-post viral cardiomyopathy with cardiac transplant is denied. By way of background, in March 2010, the Veteran filed a claim seeking service connection for congestive heart failure, cardiomyopathy, and a heart replacement. His claim was denied by the RO in a November 2010 rating decision. The Veteran was provided with a copy of this decision and notified of his appeal rights in a November 8, 2010 letter. The Veteran did not appeal this decision and new and material evidence was not actively or constructively associated with the claims file within one year. In August 2013, the Veteran filed a claim seeking the reopening of previously denied disabilities. The issue was listed as “ischemic heart disease associated with presumed contact [with] Agent Orange” based on “new regulations.” This claim was denied in the above-mentioned August 2014 rating decision that has since been appealed to the Board. The August 2014 rating decision denied the Veteran’s claim on the merits rather on the more limited question of whether new and material evidence had been received to reopen the previously denied claim. The Board’s June 2019 remand also addressed the issue on the merits and it will continue to do so. However, ischemic heart disease, to include coronary artery disease, was added to the list of presumptive disabilities for tactical herbicide exposure on August 31, 2010. See 75 Fed. Reg. 53,202 (August 31, 2010). This presumption was considered in the now final November 2010 rating decision. The period on appeal in this matter begins August 14, 2013, the date the Veteran filed his petition to reopen his claim for a cardiac disability. See 38 C.F.R. § 3.400. As will be discussed in greater detail below, the Veteran had significant cardiac issues prior to the appeal period. Notably the cardiac disability in his native heart that resulted in a transplant in 2008. Because the diseased heart was removed, the disabilities in that heart have not been present at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). However, the Veteran has had the donated heart throughout the appeal period and the Board will address whether service connection is warranted for the heart replacement. The cardiac disabilities present during the appeal period, disabilities other than the cardiac transplant, are being remanded for additional development. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). In addition to service connection on a direct basis as delineated above, service connection may be granted on a presumptive basis for certain chronic diseases. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). A chronic disease may be presumptively service connected if it is shown to have manifested to a compensable degree within one year of separation from service or if the evidence establishes chronicity and continuity of symptomatology post-service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The laws and regulations pertaining to Agent Orange exposure provide for a presumption of service connection for veterans who have any of several diseases and who served on active duty in the Republic of Vietnam (Vietnam) during the Vietnam era. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). A disease associated with exposure to herbicide agents listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section, even if there is no evidence of such disease during the period of service, unless the condition is clearly attributable to intercurrent causes as to rebut this presumption. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(d), 3.309. Ischemic heart disease (which includes atherosclerotic cardiovascular disease, including coronary artery disease) is included on the list of presumptive diseases related to herbicide exposure. However, nonischemic heart disease is not a presumptive disease for the purposes of 38 C.F.R. § 3.309(e). Analysis The Veteran maintains that his cardiac disability is related to service. Initially, the Veteran maintained that his condition was related to his exposure to herbicide agents. Subsequently, he asserted that it was the result a viral infection that incurred in service. In support of his contention that the viral origin of his cardiomyopathy is related to service, the Veteran submitted a medical article about viral infections and myocarditis. See September 2019 Mayo Clinic. With respect to evidence of a current disability, the record clearly indicates that the Veteran underwent a heart transplant in 2008 and a current disability is therefore demonstrated. As noted above, the Veteran had cardiac disabilities which lead to the replacement of his native heart. Those disabilities occurred outside of the appeal period and the Veteran underwent a heart transplant in 2008. The cardiac disabilities that subsequently arose in the non-native heart and that have been present during the appeal period are being remanded for additional development. With respect to an in-service injury, the Veteran is presumed to have been exposed to tactical herbicides and an in-service injury has therefore been demonstrated. With respect to an in-service disease, the Veteran's service treatment records indicate that he reported chest pains in March and July 1978. Both times, diagnostic tests results were normal; in March, a clinician noted that the Veteran’s pain was possibly due to reflux. In November 1983, after a chest x-ray, the Veteran was diagnosed with pneumonia and treated with antibiotics. The Veteran complained of chest pain again in December 1984 and was referred to the emergency room. Treatment records indicate that he was provided over the counter anti-inflammatory medication. The assessment was that the chest pain was “non-cardiac.” An April 1985 consultation sheet documented that the Veteran had “one or more findings on the Army Over-40 medical screen which suggest the possibility of a cardiovascular condition” and intraventricular conduct delay (IVCD) was handwritten next to the note; however the reviewing clinician documented that he did not believe that a disability was indicated stating that the Veteran has “low risk factors” and “I therefore don’t think a [illegible] is indicated currently.” It was recommended that the Veteran have his fasting cholesterol measured as this “hasn’t been measured recently.” Upon clinical examination at the time of his separation from service, a cardiac abnormality was not noted. Instead, the Veteran’s heart was reported to be clinically normal. Accordingly, although the Veteran complained of chest pains during service, his heart was evaluated on multiple occasions and a cardiac disability was not identified. An in-service disease has therefore not been demonstrated. As the record contains evidence of a current disability, and evidence of an in-service injury, what remains to be established is whether there is a nexus between the heart transplant and his in-service injury. By way of history, in October 2004 the Veteran was hospitalized for chest pains and dyspnea. Four years later, in May 2008, the Veteran underwent a heart transplant. The record contains conflicting evidence on the nature of the Veteran’s heart disability prior to the transplant, to include whether the transplant was the result of ischemic heart disease. For example, prior to the Veteran’s heart transplant there were references to both ischemic and nonischemic heart disease in the Veteran’s medical records. Notably, a January 2005 cardiac electrophysiology consultation diagnosed nonischemic cardiomyopathy with congestive heart failure and wide QRS complex based on an electrocardiogram and echocardiogram. That same month, “a mild rim of peri-infract inferolateral ischemia” was noted during an exercise radionuclide stress test. Notwithstanding this finding, two months later, the same private healthcare facility diagnosed the Veteran with “primary nonischemic cardiomyopathy.” See a March 2005 treatment record from the Arizona Heart Institute. An echocardiogram conducted in September 2007 indicated that the “findings are consistent with the diagnosis of a dilated cardiomyopathy.” An echocardiogram from April 2008 reported “ischemic cardiomyopathy.” The operative report from the Veteran’s May 2008 heart transplant listed the pre- and postoperative diagnoses as “chronic systolic congestive heart failure.” Following the Veteran’s surgery, a surgical pathology report of the removed heart lists the final diagnosis(es) as “dilated cardiomyopathy” and “mild coronary atherosclerosis.” See a May 3, 2008 pathology report. The record contains multiple VA examinations and medical opinions related to the Veteran’s heart transplant. The Veteran was afforded a VA examination in August 2014 where, after reviewing the claims file and conducting a clinical examination, an examiner stated that “the first objective evidence of native [coronary artery disease] was in the pathology report of the removed native heart . . . [and] with [the] removal of the native heart, native CAD was no longer an active medical condition.” It was also noted that the Veteran’s cardiac treatment from 2004 to 2008 was for nonischemic cardiomyopathy and not for CAD. The examiner noted the conflicting diagnoses of dilated cardiomyopathy and ischemic cardiomyopathy and reported that “evaluations by cardiologists as well as transplant cardiologists at multiple institutions . . . show a consensus that the dilated cardiomyopathy is not ischemic or due to CAD.” The examiner pointed to the findings contained in the pathology report of the diseased heart to support his statement. The examiner opined that the need for heart transplant was due to nonischemic cardiomyopathy. In November 2015, Dr. M.C.S. (the Veteran’s transplant surgeon) submitted a statement that the Veteran had ischemic cardiomyopathy, with end stage New York Heart Association class IV failure requiring the 2008 heart transplant. The surgeon did not support her statement with any further rationale. In August 2019, pursuant to a Board remand, a VA medical opinion was obtained to clarify the conflicting diagnoses between ischemic and nonischemic heart disease in the record and determine which disease was the impetus of the Veteran’s heart transplant. The examiner opined that the Veteran’s cardiac transplant was required because of nonischemic cardiomyopathy and the nonischemic cardiomyopathy was attributed by the Veteran’s cardiologist as being due to either hypertension or post viral illness, therefore the nonischemic cardiomyopathy status post heart transplant was not due to a presumptive herbicide agent related condition. The examiner based his findings on the Veteran’s extensive treatment records with include evaluations by multiple cardiologists of various specialties including general cardiology, electrophysiology and heart failure specialty and the diagnosis was nonischemic cardiomyopathy. The Veteran’s primary cardiologist Dr. R.S. attributed the Veteran’s cardiac condition as being due to either hypertension or following a viral cause, both of which are not related to herbicide exposure. The Veteran’s cardiac tissue histology, which the examiner stated was the ultimate gold standard for definitive diagnosis, indicated a post-operative diagnosis of dilated cardiomyopathy and mild coronary atherosclerosis. See May 2008 pathology report. The examiner further concluded that the degree of atherosclerosis found in the native heart was not sufficient to cause the severe left ventricle dysfunction as they are nonobstructive. After noting that multiple cardiologists determined that the Veteran’s cardiac condition which resulted in the 2008 transplant to be due to nonischemic cardiomyopathy, the 2019 VA examiner addressed the November 2015 letter from Dr. M.C.S. (the Veteran’s transplant surgeon) which indicated that the Veteran had ischemic cardiomyopathy which caused the need for a transplant. The examiner found this declaration/diagnosis not supported by the final operative diagnosis of chronic systolic congestive heart failure given by the transplant surgeon in her operative note in May 2008, seven years prior. Additionally, evaluations by multiple cardiologists who were taking care of the Veteran and who referred the case to Dr. M.C.S., diagnosed nonischemic dilated cardiomyopathy. The 2019 VA examiner concluded that those diagnoses and the definitive pathology report showing the absence of significant obstructive coronary artery disease demonstrate the Veteran’s pre transplant cardiomyopathy was considered to be nonischemic in nature and attributed to poorly treated hypertension or post-viral in nature. The Veteran’s attorney subsequently argued that the VA examinations only addressed cardiac transplant as secondary to ischemic heart disease and herbicide exposure and have not looked at whether the Veteran experienced cardiac problems in service, including possible viral illnesses which affected his heart. An internet article addressing how myocarditis may be caused by a viral infection was also submitted. This argument was the impetus for the Board’s June 2020 remand. Following the Board’s remand, in June 2020, an addendum opinion was obtained to determine if the Veteran’s native heart disability could be etiologically related to service. The 2020 VA examiner opined that it was less likely than not that the Veteran’s non-ischemic cardiomyopathy status post heart transplant is due to or aggravated beyond its natural course by active service, conditions while in service, or herbicide exposure. The examiner noted that nonischemic cardiomyopathy was diagnosed in 2004, with the etiology attributed as likely related to hypertension or following a viral cause. The examiner addressed the Veteran’s contention that the viral origin of his heart disease began in service, specifically noting the Mayo clinic article. The examiner reviewed the Veteran’s service treatment records and found no diagnosis of or treatment for hypertension, viral myocarditis, or cardiac condition to support that his heart disability is related to service. The examiner opined that the Veteran’s service treatment records did not demonstrate that the Veteran was diagnosed with or treated for a chronic cardiac condition, hypertension or viral myocarditis in service. The Veteran’s exit examination, echocardiogram and chest x-ray were all normal with no objective evidence of cardiac condition. Additionally, post-discharge records from November 2002 showed a normal blood pressure and heart rate. The Veteran was not diagnosed with his cardiac condition until 2004, more than 15 years after discharge from service. The examiner concluded that the Veteran’s pre-transplant cardiac conditions were not related to service. The Board finds the August 2019 and June 2020 opinions to be the most probative evidence of record as they provide reasons and bases for the conclusion with citations to the evidence of record. The Board acknowledges the November 2015 statement from Dr. M.C.S., stating that the Veteran had significant ischemic heart disease requiring him to have a heart transplant in 2008. However, this statement is not accompanied with any rationale and is afforded low probative value. While “mild coronary artery disease” was noted in the native heart following the transplant, the preponderance of the evidence demonstrates that his nonischemic heart condition was the impetus for the Veteran’s 2008 transplant. The Board recognizes that coronary heart disease is a presumptive disease under the provisions set forth in 38 C.F.R. § 3.309(e), however, the medical opinions indicate that this coronary artery disease resolved once he received his new heart, which was prior to the appeal period, making it no longer a current disability in this instance. As noted, the existence of ischemic heart disease in the non-native heart is being remanded for additional development. While the Veteran believes his native heart disability and resulting heart transplant in 2008 is related to service, he has not been shown to have the specialized training sufficient to render such an opinion, as the diagnosis and etiology of a heart condition are matters not capable of lay observation and require medical testing and expertise to determine. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Veteran’s opinion as to the cause of his heart transplant are not competent evidence. In sum, the preponderance of probative evidence is against a finding that the Veteran’s heart transplant is related to service, to include his presumed in-service herbicide exposure. Accordingly, service connection for a heart transplant is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. REASONS FOR REMAND The Veteran is presumed to have been exposed to tactical herbicide agents and the Veteran’s attorney has recently submitted excerpts of private medical records indicating a diagnosis of atherosclerotic disease in April 2018. However, the record is unclear whether the Veteran’s heart transplant constitutes an intercurrent injury that rebuts the presumption of in-service incurrence. 38 C.F.R. § 3.307(d); 38 C.F.R. § 3.309(e) Evidence which may be considered in rebuttal of that presumption is any evidence of a nature usually accepted as competent to indicate the time of existence or inception of disease, and medical judgment will be exercised in making determinations relative to the effect of intercurrent injury or disease. The expression “affirmative evidence to the contrary” will not be taken to require a conclusive showing, but such showing as would, in sound medical reasoning and in the consideration of all evidence of record, support a conclusion that the disease was not incurred in service. As noted, the record includes only excerpts of the Veteran’s most recent private treatment records. Since the claim is being remanded for additional development, the Veteran should be afforded an opportunity to submit, or authorize VA to obtain, his private treatment records. The matters are REMANDED for the following action: 1. Contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issue on appeal. The Veteran should also be notified that he may submit evidence or treatment records to support his claim. The AOJ should attempt to obtain any such records. All efforts to obtain such records should be documented in the claims folder. All available records should be associated with the Veteran’s VA claims folder. 2. After completing the action identified above, arrange for an appropriate health care provider to review the Veteran’s claims file. The examiner should: (a.) Identify any cardiac disability present during the appeal period in the Veteran’s non-native heart. The examiner should specifically comment on the finding of atherosclerotic disease identified in an April 20, 2018 chest x-ray. (b.) If ischemic heart disease, to include atherosclerotic cardiovascular disease or coronary artery disease is identified, the examiner should provide an opinion as to whether the post-transplant ischemic heart disease is due to his exposure to tactical herbicides in service, or whether the Veteran’s heart transplant was an intercurrent injury that rebuts the presumption that the disease was incurred in service. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, Associate 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.