Citation Nr: 21064879 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 19-35 010 DATE: October 21, 2021 ORDER Entitlement to service connection for a heart condition, to include valvular heart disease and coronary artery disease, is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. The evidence does not support a finding that the Veteran was exposed to herbicides while in service 2. The preponderance of the evidence is against finding that the Veteran's heart condition was due to a disease or injury in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart condition, to include valvular heart disease and coronary artery disease, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5107(b); 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1956 to July 1984. During the pendency of the appeal, the Veteran died in February 2020. In May 2020, the Department of Veterans Affairs (VA) Regional Office (RO) granted substitution to the appellant over the current claims. The appellant attended a hearing before the undersigned Veterans Law Judge in November 2020. A transcript of the hearing is of record. This matter was previously remanded by the Board of Veterans' Appeals (Board) in January 2021. 1. Entitlement to service connection for a heart condition, to include valvular heart disease and coronary heart disease The appellant asserts that the Veteran's heart condition was due to herbicide exposure during military service. Specifically, the appellant contends that the Veteran was exposed to Agent Orange in the demilitarized zone (DMZ) in Korea. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Private treatment records show that the Veteran received treatment for a diagnosis of coronary artery disease. As a result, the Veteran had a current coronary artery disease disability. VA laws and regulations provide that, if a Veteran was exposed to herbicides during service, certain listed diseases are presumptively service connected, to include coronary artery disease. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975 is presumed to have been exposed to Agent Orange. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The presumption of herbicide exposure also extends to certain Veterans who served in Korea. Specifically, a veteran who, during active military, naval, or air service, served between September 1, 1967 to August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), 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 service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iv). In a May 2017 statement, the Veteran stated that he had to "fly a lot to inspect the Hawk Missile Systems in South Korea and South Vietnam". The Veteran had an examination for his claimed heart disability in September 2017. The examiner opined that it was less likely than not that the Veteran's heart condition was incurred in or caused by his active service. The examiner stated that the Veteran's congestive heart failure was diagnosed in 2016 and may be due to his hypertension. Additionally, the examiner stated that the Veteran's service treatment records show no hypertension of heart murmur during military service. The examiner also noted that the Veteran had a normal stress test and that he had no heart murmur on exam during military service. The Veteran had another examination for his claimed heart disability in October 2019. The examiner opined that it was less likely than not that the Veteran's heart condition was incurred in or caused by his active service. The examiner stated that the medical record indicates that the Veteran's aortic stenosis has developed over the last three years. The examiner specifically noted an echocardiogram in 2016, which revealed no evidence of aortic stenosis compared to the finding of aortic stenosis noted on the echocardiogram on September 10, 2019. Additionally, the examiner indicated that there is no evidence in the Veteran's service record of aortic valve disease while in the service. Finally, the examiner noted that the Veteran's chest pain while in the service does not appear to represent cardiac disease as he had a negative stress test at that time, and the sinus bradycardia he had while in the service is a normal physiologic variant and is not related to his current valvular disease. At the November 2020 Board hearing, the appellant testified that she believed that the Veteran's heart condition was related to exposure to Agent Orange. The appellant further testified that the Veteran served in Vietnam. Based on the foregoing evidence of record, the Board finds that entitlement to service connection for a heart disability is not warranted. The Board finds the September 2017 and October 2019 examiners' medical opinions to be probative because the examiners provided an adequate rationale based on the relevant medical evidence of record. The examiners noted that the Veteran's service treatment records did not indicate that the Veteran had a heart condition during service. Additionally, the examiners noted the Veteran's heart condition symptoms began many years after separation from service. Ultimately, the examiners provided an adequate rationale concluding that the Veteran's heart condition was less likely than not incurred in or proximately the result of his active service based on the pertinent evidence of record. Furthermore, the Board notes that the Veteran's service personnel records (SPRs) show that he served in Korea from March 31, 1968 to May 30, 1969 and, during that time, was attached to the HHC USA Ascom Depot. However, the Veteran's unit is not a unit determined by the Department of Defense as one that operated in or near the Korean demilitarized zone (DMZ). Furthermore, the available evidence of record does not suggest that the Veteran was assigned to a unit that operated in or near the Korean DMZ or in the Republic of Vietnam. Additionally, a memorandum from the Records Research Center stated that "no evidence was located to support documentation of the claimed exposure". Although the Veteran and the appellant believed that he was exposed to herbicides during service, the Board is unable to afford these statements significant probative weight, in light of the contemporaneous service personnel records and other official sources that do not place him in or near the DMZ in Korea or in the Republic of Vietnam. In sum, the evidence preponderates against the claim for service connection for a heart disability. There is no reasonable doubt to be resolved, and the claim of entitlement to service connection for a heart disability, to include valvular heart disease and coronary artery disease, must be denied. 38 C.F.R. § 3.303. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. The appellant contends that the Veteran is entitled to service connection for a right shoulder disability. In accordance with the January 2021 Board remand, a medical opinion was obtained regarding the etiology of the Veteran's claimed right shoulder disability in July 2021. The examiner opined that it was less likely than not that the Veteran's right shoulder condition was incurred in or caused by his active service. The examiner stated that based on the review of the evidence of record, there is insufficient evidence to establish any continuity of symptoms with military service. The examiner indicated that any previous in-service shoulder complaints the Veteran may have had were entirely self-resolved, and that this is objectively evidenced by SF-88 retirement physical from February 1984 which is silent for the diagnosis of any shoulder condition, and specifically notes a completely normal upper extremity exam. Additionally, the examiner noted on self-reported SF-93 retirement medical history dated February 21, 1984, the Veteran explicitly indicated that he did not have any shoulder issues. The July 2021 examination is not in compliance with the January 2021 remand by the Board. The January 2021 Board remand instructed the examiner to discuss the competent lay statements of record regarding the Veteran's reported in-service right shoulder injury from a fall while doing Army physical training. The July 2021 examiner did not clearly address this evidence. Furthermore, the examiner was instructed to address the Veteran's relevant service treatment records, which note complaints of right scapula pain for three days in December 1968. The examiner did not clearly address this evidence. Since the Board's remand instructions have not been complied with, these issues must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, remand is appropriate to obtain an additional VA medical opinion regarding the etiology of the Veteran's claimed right shoulder disability, to ensure full compliance with the January 2021 Board remand, and to adequately address the competent lay statements of record. 2. Entitlement to service connection for a right knee disability is remanded. The appellant contends that the Veteran is entitled to service connection for a right knee disability. In accordance with the January 2021 Board remand, a medical opinion was obtained regarding the etiology of the Veteran's claimed right knee disability in July 2021. The examiner opined that it was less likely than not that the Veteran's right knee condition was incurred in or caused by his active service. The examiner stated that based on the review of the evidence of record, there is insufficient evidence to establish any continuity of symptoms with military service. The examiner indicated that any previous in-service knee complaints the Veteran may have had were entirely self-resolved, and that this is objectively evidenced by SF-88 retirement physical from February 1984 which is silent for the diagnosis of any knee condition, and specifically notes a completely normal lower extremity exam. Additionally, the examiner noted on self-reported SF-93 retirement medical history dated February 21, 1984, the Veteran explicitly indicated that he did not have any knee issues. The July 2021 examination is not in compliance with the January 2021 remand by the Board. The January 2021 Board remand instructed the examiner to discuss the competent lay statements of record regarding the Veteran's reported in-service right knee injury from 28 years of rigorous Army physical fitness training to include road marches with full rucksacks and running for miles on hard surfaces in leather combat boots. The July 2021 examiner did not clearly address this evidence. Furthermore, the examiner was instructed to address the Veteran's relevant service treatment records, which note complaints of right knee pain in September 1970. The examiner did not clearly address this evidence. Since the Board's remand instructions have not been complied with, these issues must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, remand is appropriate to obtain an additional VA medical opinion regarding the etiology of the Veteran's claimed right knee disability, to ensure full compliance with the January 2021 Board remand, and to adequately address the competent lay statements of record. 3. Entitlement to service connection for a left knee disability is remanded. The appellant contends that the Veteran is entitled to service connection for a left knee disability. In accordance with the January 2021 Board remand, a medical opinion was obtained regarding the etiology of the Veteran's claimed left knee disability in July 2021. The examiner opined that the Veteran's left knee condition clearly and unmistakably pre-existed service and that it was less likely than not that the Veteran's left knee condition was permanently aggravated beyond its natural progression by military service. The examiner stated that based on the review of the evidence of record, there is insufficient evidence to establish any continuity of symptoms with military service. The examiner indicated that any previous in-service knee complaints the Veteran may have had were entirely self-resolved. Furthermore, the examiner stated that not only was any pre-existing knee condition not permanently aggravated beyond its natural progression by military service, but it actually entirely resolved. The July 2021 examination is not in compliance with the January 2021 remand by the Board. The January 2021 Board remand instructed the examiner to discuss the competent lay statements of record regarding the Veteran's reported in-service left knee injury from 28 years of rigorous Army physical fitness training to include road marches with full rucksacks and running for miles on hard surfaces in leather combat boots. The July 2021 examiner did not clearly address this evidence. Since the Board's remand instructions have not been complied with, these issues must be remanded again. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Accordingly, remand is appropriate to obtain an additional VA medical opinion regarding the etiology of the Veteran's claimed left knee disability, to ensure full compliance with the January 2021 Board remand, and to adequately address the competent lay statements of record. (CONTINUED ON NEXT PAGE) The matters are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any right shoulder disability. The examiner should review the claims folder, and then respond to the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that a right shoulder disability is related to the Veteran's active service? In answering this question, attention is invited to the relevant service treatment records. See VBMS, document labeled STR -Medical, receipt date 07/10/2017, page 52 (noting complaints of right scapula pain for three days in December 1968). The examiner should also address the Veteran's lay assertions of record, to include his statement that he injured his right shoulder during a fall while doing Army physical fitness training. See VBMS, document labeled VA 21-526EZ, Fully Developed Claim (Compensation), receipt date 05/25/2017. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative nexus opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 2. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any right knee disability. The examiner should review the claims folder, and then respond to the following: Is it at least as likely as not (i.e., probability of 50 percent or greater) that a right knee disability is related to the Veteran's active service? In answering this question, attention is invited to the relevant service treatment records. See VBMS, document labeled STR -Medical, receipt date 07/10/2017, page 50. The examiner should also address the Veteran's lay assertions of record, to include his statement that he injured his right knee due to demands of 28 years of rigorous Army physical fitness training to include road marches with full rucksacks and running for miles on hard surfaces in leather combat boots. See VBMS, document labeled VA 21-526EZ, Fully Developed Claim (Compensation), receipt date 05/25/2017. Also, note that the Veteran is competent to describe any symptoms he may have experienced since service discharge. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the lack of a diagnosed disability in service cannot serve as the sole basis fora negative nexus opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. 3. Obtain an addendum medical opinion from a qualified VA medical professional to determine the nature and etiology of any left knee disability. The examiner should review the claims folder, and then respond to the following: (a) Did the Veteran's left knee disorder clearly and unmistakably (obvious, manifest, undebatable) pre-exist his period of active service? (b) If it is your opinion that any left knee disorder clearly and unmistakably pre-existed service, is there clear and unmistakable evidence that the left knee disorder was not aggravated by service, either because there was no increase in disability during service or because any increase in disability was due to the natural progress of the pre-existing condition? (c) If you conclude that a left knee disorder did not clearly and unmistakably pre-exist service, is it at least as likely as not (probability 50 percent of more) that any left knee disorder had its onset in service? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. Note that the lack of a diagnosed disability in service cannot serve as the sole basis for a negative nexus opinion. Lay contentions must be considered and weighed in making the determination as to whether a nexus exists. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.