Citation Nr: 21064371 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-10 422 DATE: October 19, 2021 ORDER Entitlement to service connection for a heart condition is denied. FINDINGS OF FACT 1. The Veteran has not been diagnosed with coronary artery disease, ischemic heart disease, or any other heart disorder that is presumed to be related to his presumed exposure to herbicide agents (Agent Orange). 2. The Veteran's heart condition (left ventricular hypertrophy, aortic valve insufficiency, and dissection of the ascending aorta) did not manifest during service; and the preponderance of the evidence fails to establish that a present heart condition is etiologically related to service (to include exposure to herbicide agents), or is proximately due to, a result of, or aggravated by a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1969 to February 1972, including in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in January 2019. A transcript of the hearing is associated with the claims file. In August 2021, the Board remanded this matter for an addendum medical opinion discussing whether the Veteran's heart condition is caused or aggravated by any service-connected disability, to include posttraumatic stress disorder (PTSD) and obstructive sleep apnea (OSA). The agency of original jurisdiction (AOJ) obtained a VA medical opinion in September 2021. The Board finds that it substantially complies with the prior remand directives. As neither the Veteran nor the record has raised any other issues, the Board will proceed with a decision on the merits. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, 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 may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Compensation may be established for any incremental increase in disability or any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected disabilities, above the degree of disability existing before the increase regardless of its permanence. Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). For certain conditions listed at 38 C.F.R. § 3.309(e), including "ischemic heart disease", service connection is presumed based on exposure to herbicide agents. Ischemic heart disease includes, but is 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. Id. Whether a condition constitutes ischemic heart disease or not is a medical determination that is beyond lay capacity. Layno v. Brown, 6 Vet. App. 465, 469 (1994). For conditions not listed under 38 C.F.R. § 3.309(e), service connection may still be granted on a direct basis, if the evidence shows a link between the claimed condition and exposure to herbicide agents. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 1. Entitlement to service connection for a heart condition The record reflects that the Veteran has three diagnosed heart conditions: (1) left ventricular hypertrophy; (2) aortic valve insufficiency; and (3) dissection of the ascending aorta. See C&P Exam, September 2021. He asserts that his heart conditions are directly related to exposure to herbicide agents during military service, or proximately due to, a result of, or aggravated by service-connected PTSD and OSA disorders. See Hearing Transcript, January 2019. Initially, the evidence does not support a diagnosis of ischemic heart disease under accepted medical definitions. See VA examination, August 2011; C&P Exam, September 2021 (finding that "the available clinical records do not support a diagnosis of "ischemic heart disease" or "coronary artery disease"). Service connection on a presumptive basis is thereby not applicable in this case. The Board will still consider service connection on a direct basis and as secondary to a service-connected PTSD or OSA disability. See 38 C.F.R. §§ 3.303, 3.310. The Board is aware that the April 2020 VA examiner checked the box for a diagnosis of "ischemic heart disease" and stated that the Veteran "is not a smoker, has hyperlipidemia, has [hypertension], and no diabetes." However, he did not specify which of the Veteran's diagnoses met the definition or explain his rationale for such finding. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007). The Board notes that applicable regulations clearly state that hypertension and "peripheral manifestations of arteriosclerosis" are not within the accepted regulatory definition of ischemic heart disease. See 38 C.F.R. § 3.309, Note 2 ("For purposes of this section, the term ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease"). The Board affords the examiner's notation of ischemic heart disease no probative weight. The Board notes that at least some evidence has attributed the Veteran's left ventricular hypertrophy to hypertension. See VA examination, August 2011. The Veteran is not service-connected for hypertension, however; and, there is no pending claim for such disability. His representative argued in a June 2021 appellate brief that the Board should consider hypertension as an "intermediate step", and cited the holding in Walsh v. Wilkie, 32 Vet. App. 300 (2020) (stating that obesity may be an intermediate step between a service-connected and nonservice-connected disability). The Board does not agree. Unlike obesity, hypertension is a compensable disability for VA purposes. See 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. There is no basis within applicable law to state that a separately compensable disease may be considered an "intermediate step" under the same framework as obesity. If the Veteran wishes to reopen his previously denied claim of service connection for hypertension, he must do so by submitting an appropriate application form as prescribed by the Secretary. 38 C.F.R. § 3.155. Turning to the evidence of record, the Veteran underwent a VA examination in August 2011. The examiner found that the Veteran's aortic valve replacement is less likely than not caused by or a result of ischemic heart disease. He explained that available records did not show any diagnosis meeting accepted medical standards for ischemic heart disease. He explained that left ventricular hypertrophy is more likely than not related to the Veteran's longstanding hypertension, because the latter is a known cause of the former. The Veteran underwent a VA examination in April 2020. The examiner diagnosed valvular heart disease, noting a history of left ventricular hypertrophy, aortic aneurism, and aortic valve insufficiency. After reviewing the claims file, he opined that it is less likely than not that the Veteran's diagnosed valvular heart diseases are related to exposure to herbicide agents during military service. He cited to a medical treatise article in support of his opinion. The AOJ obtained an addendum medical opinion in September 2021. The clinician, Dr. S.B., listed the Veteran's three diagnosed heart disorders of left ventricular hypertrophy, aortic valve insufficiency, and dissection of the ascending aorta. After reviewing the claims file, she found that it is less likely than not that any diagnosed heart disorder is caused or aggravated by PTSD or OSA. She explained that the medical literature does not support PTSD or OSA as factors that can cause or aggravate the Veteran's diagnosed heart conditions. She cited numerous medical treatise articles in support of her opinion. Regarding left ventricular hypertrophy, Dr. S.B. found that the Veteran had numerous other risk factors, including uncontrolled hypertension, aortic valve disease, age, and excess weight. She explained that left ventricular hypertrophy is more common in people as they age and in persons with excess weight. As to aortic valve insufficiency, Dr. S.B. noted that it is often acquired as a result of rheumatic fever. She observed that the Veteran's available medical records from the University of Washington in September 2018, Skagit Regional Hospital in September 2018 and December 2019, and Virginia Mason Medical Center in June 2019 documented that the Veteran had "rheumatic aortic valve insufficiency" otherwise referred to as "rheumatic aortic valve disease" and "AV stenosis 2/2 rheumatic valvular heart disease". Hence, she concluded that the Veteran's aortic valve insufficiency was most likely due to rheumatic heart disease/rheumatic fever. Regarding dissection of the ascending aorta, Dr. S.B. found that it is relatively uncommon but usually occurs in men in their 60th or 70th decade of life. She noted risk factors for aortic dissection include, among others, uncontrolled hypertension, aortic valve defect, being male, and being 60 years of age or older. She observed that the Veteran had many of these risk factors, including longstanding hypertension, history of aortic valve defect, aortic aneurism, being male, and being older than 60 years at the time of his aortic dissection. The Board has reviewed the remainder of the Veteran's VA and private medical records. However, such records do not evince a nexus between the diagnosed heart conditions and herbicide agents, or a causal or aggravation relationship between a heart disorder and a service-connected disability. See 38 C.F.R. §§ 3.303, 3.310. The Board also notes that the Veteran has never authorized VA to obtain his heart treatment records from the University of Washington or Everett Clinic, despite being given the opportunity to do so. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also Subsequent Development Letter, December 2019. After careful review of the record, the Board finds that service connection for a heart condition may not be granted. In reaching this conclusion, the Board has carefully reviewed the medical evidence. Dr. S.B. found that it is less likely than not that any diagnosed heart disorder is caused or aggravated by PTSD or OSA. She noted the presence of other risk factors related to the heart conditions and cited to medical articles to support her findings. Her opinion is entitled to significant probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The April 2020 examiner found that the Veteran's heart disorders were less likely than not related to exposure to herbicide agents. He reviewed the claims file and rendered a medical opinion based on his professional expertise and citations to medical treatise evidence. His findings are likewise entitled to significant probative weight. Id. The Board observes that its prior decision did not find that the April 2020 examiner's opinion was inadequate as to the opinion for direct service connection related to herbicide agents. See BVA Decision, August 2021. Thus, its probative value is not diminished when used for that purpose. The Veteran's lay evidence was considered. Nevertheless, the ability to link a heart disorder to military service and exposure to herbicide agents, or to a service-connected disability, requires complex medical knowledge that is beyond the capacity of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, the Board affords higher probative weight to the competent medical evidence of record. In summary, given the record before it, the Board finds that the evidence does not reach the level of equipoise in the claim of service connection for a heart disorder. The appeal may not be granted. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits...."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA... the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.