Citation Nr: 21004882 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 18-18 463 DATE: January 28, 2021 ORDER Service connection for a cardiovascular disorder, to include ischemic heart disease, hypertensive cardiovascular disease, atrial fibrillation, and atrial flutter, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety disorder, and posttraumatic stress disorder (PTSD) is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a cardiovascular disorder that is due to a disease or injury in service. CONCLUSION OF LAW The criteria for service connection for a cardiovascular disability are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303(b), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1967 to May 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were most recently before the Board in June 2020 when they were remanded for additional development. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives concerning his cardiovascular disorder. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was provided with an examination, and a study regarding herbicide agents at Okinawa was associated with the claims file. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain diseases may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a).   A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). A veteran who, during active military service, served in Vietnam during the period beginning in January 1962 and ending in May 1975, is presumed to have been exposed to herbicide agents. 38 C.F.R. §§ 3.307, 3.309. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, there are certain diseases that shall be service-connected even though there is no record of such disease during service. 38 C.F.R. § 3.309 (e). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990).   Entitlement to service connection for a cardiovascular disorder, to include ischemic heart disease, hypertensive cardiovascular disease, atrial fibrillation, and atrial flutter. The Veteran asserts service connection for cardiovascular disorders, to include ischemic heart disease, hypertensive cardiovascular disease, atrial fibrillation, and atrial flutter. He contends that he was exposed to herbicide agents while at Kadena Air Force Base working with supply maintenance and equipment for those serving in Vietnam. Initially, concerning the Veteran’s contentions regarding herbicide exposure at Kadena, a 2013 study concluded there was no evidence herbicide agents were shipped through or used at Okinawa. He has current diagnoses of hypertensive heart disease and paroxysmal atrial fibrillation as reported at the February 2020 examination. As such, the first element of service connection is met. His service treatment records show substernal chest pain. The February 2020 examiner provided a negative nexus opinion. The examiner explained that the Veteran did not have any cardiovascular disorder prior to 2009. He also disagreed with a previous diagnosis of atrial flutter as there is no electrocardiogram showing atrial fibrillation or flutter. The examiner reported that his hypertensive heart disease and paroxysmal atrial fibrillation were not due to the Veteran’s service as he did have a diagnosis or treatment during service, and they were diagnosed decades after his exit. Moreover, his separation examination was negative for heart related complaints. The disabilities did not manifest within one year of exiting service nor did he have continuity of the same symptomatology. He did not have a continuation of chest pain during or after service. His in-service complaints of chest pain were reported as pleurodynia which is a non-cardiologic condition attributed to self-limiting viral infection. The Veteran’s pleurodynia was acute and transitory without sequelae. The Board finds this opinion to have great probative value as the examiner supported the opinion with appropriate rationale and review of the Veteran’s medical records. An additional September 2020 opinion found that the Veteran’s disabilities were not due to herbicide agents exposure. The examiner cited medical literature (CURRENT DIAGNOSIS & TREATMENT CARDIOLOGY, 5e; HARRISON’S PRINCIPLES OF INTERNAL MEDICINE, 20e; and Uptodate.com) showing that the Veteran’s hypertensive cardiovascular disease and paroxysmal atrial fibrillation are not caused by herbicide agents. The Board finds this opinion to have some probative value. While it is somewhat conclusory, it relies on current medical literature, which was cited, to provide a negative nexus regarding the Veteran’s disabilities and whether they are due to herbicide agents. The Veteran has provided a positive nexus statement regarding his disabilities. The examiner stated that they were more probable than not related to his military service. The Board finds this opinion to have little to no probative value as it is entirely conclusory without adequate support or rationale for its findings. After review of the competent and probative evidence, the Board finds that the preponderance of the evidence is against service connection for any cardiovascular disorder. The competent and highly probative VA medical opinion explains why they are not related to service or began within one year of exiting service or had continuity of symptomology. There is no indication from the claims file, nor has the Veteran asserted, that his disabilities manifested within one year after exiting service and continued. Rather, his diagnoses are from 2009 at the earliest. The examiner explained that his in-service chest pain was not related to cardiovascular disorders, was acute and transitory, and resolved without sequelae. Additionally, the Board acknowledges the positive nexus opinion; however, it has no probative value as reported above. The Board acknowledges the Veteran’s assertions that he was exposed to herbicide agents while stationed at Kadena Air Force Base. However, the 2013 study submitted for the Deputy Director, Environmental Safety and Occupational Health (International Environmental Programs), at the time found herbicide agents were not stored at Okinawa. Moreover, even if the Veteran was exposed to herbicide agents, the September 2020 examiner explained that relevant medical literature does not support herbicide agents causing the Veteran’s current cardiovascular disorders. As such, the probative competent evidence weighs against a nexus. Therefore, the preponderance of the evidence is against a finding that the Veteran’s disabilities are related to his in-service chest pain or due to any potential exposure to herbicide agents. The available competent and probative evidence weighs against a nexus to service. As such, reasonable doubt does not arise, and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disorder, to include depressive disorder, anxiety disorder, and posttraumatic stress disorder (PTSD) is remanded. The Veteran asserts service connection for an acquired psychiatric disorder, to include as due to witnessing an in-service B-52 accident. The June 2020 BVA remand directed the RO to attempt to verify the Veteran’s assertion of witnessing a B-52 accident while stationed at Kadena AFB. A JSRRC request form was associated with the file; however, no further information was reported. As such, the Board is unable to determine whether the Veteran’s in-service stressor has been verified. Additionally, a negative nexus opinion was provided in September 2020 finding that the Veteran did not have an acquired psychiatric disorder, to include not having any psychiatric symptoms. Additionally, the examiner explained why he disagreed with the diagnoses from 2015. However, since that time, the Veteran has submitted a statement that he is depressed, socially isolated, and has impaired impulse controlled and abstract thinking. The Veteran is competent to report these symptoms. However, he is not competent to determine they are manifestations of an acquired psychiatric disorder. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, a new opinion/examination is warranted to determine whether the Veteran has/had an acquired psychiatric disorder during the period on appeal (June 2015 onward) that is related to service. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (stating that a claimant satisfies the current disability requirement when the claimant has a disability at the time a claim for VA benefits were filed or has a disability during the pendency of that claim; see also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (considering the application of McClain on a recent diagnosis predating the filing of a claim). This matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Through all appropriate sources, seek to verify the occurrence of a B-52 blowing up at Kadena AFB while the Veteran was stationed there. Make sequential requests, as needed, for the entire time period provided by the Veteran. If those efforts prove unsuccessful, prepare a memorandum of unavailability and associate it with the file and notify the Veteran.   After completing #1 and #2, obtain an addendum opinion due to the ongoing national public health emergency. Send the file to an appropriate mental health examiner (licensed psychologist and/or psychiatrist), and ask the clinician to review the claims file. If the clinician needs an in-person examination, then take appropriate steps to schedule one. Ensure the examiner has access to the claims file, to include a copy of this Remand. The examiner is to: -- Identify any acquired psychiatric disability since June 2015 onward. Then, (a.) If PTSD is diagnosed, is it at least as likely as not (50 percent or greater probability) that PTSD manifested during or is otherwise related to the Veteran’s period of active service, to include due to the claimed in-service stressors and/or fear of hostile military or terrorist activity? (b.) For any diagnosed psychiatric disorder other than PTSD, is it at least as likely as not (50 percent or greater probability) that the disorder manifested during or is otherwise related to the Veteran’s period of active service? Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered.   If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, 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.