Citation Nr: 21066514 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 12-32 260 DATE: November 1, 2021 ORDER Entitlement to service connection for a heart condition, to include as due to herbicide agent exposure, is denied. FINDINGS OF FACT A chronic heart condition was not shown in service or until many years thereafter; and, the preponderance of the evidence is against a finding that the Veteran's diagnosed sick sinus syndrome and hypertrophic cardiomyopathy had its initial onset in service or is otherwise etiologically related to service, to include exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart condition, to include as due to herbicide agent exposure have not been met. See 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1966 until January 1969, to include service in Vietnam. This matter came before the Board of Veterans 'Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans 'Affairs (VA) Regional Office (RO) In May 2014, the Veteran testified at a hearing before someone other than the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In an August 2017 VA correspondence, the Veteran was provided an opportunity to request another hearing. He declined that opportunity. The Board denied this matter in May 2016. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). The March 2016 decision was vacated and remanded in a March 2017 Joint Motion for Remand (JMR). A second Board decision denied the matter in February 2018. Pursuant to a February 2019 JMR, the Board remanded the claim for further development. This matter was remanded in August 2020 and most recently in July 2021 for an addendum opinion as the May 2021 VA medical opinion was inadequate. In September 2021, an addendum opinion was provided that complied with the remand instructions. There has been substantial compliance with the July 2021 Board remand. SERVICE CONNECTION Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. See 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a presumptive basis for exposure to certain herbicide agents for Veterans who served in the Republic of Vietnam between January 9, 1962 and May 7, 1975. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The VA has determined that specific conditions are associated with herbicide agent exposure, including in pertinent part, ischemic heart disease (including, but 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). See 38 C.F.R. § 3.309 (e). The Veteran meets the requirements for a presumption of herbicide exposure. See 38 C.F.R. § 3.307. However, the Veteran has not been diagnosed with a heart disability that has been presumptively linted to exposure to herbicide agents. An October 2017 examination specifically determined that the Veteran did not have ischemic heart disease or other related heart disabilities. The parties to the February 2019 JMR did not dispute this finding. Rather, the parties agreed that the October 2017 examination was inadequate because the examiner failed to provide an opinion as to whether the Veteran's diagnosed sick sinus syndrome was caused by, or the result of, his active service, to include his exposure to herbicide agents. The fact that the Veteran cannot establish service connection on a presumptive basis does not preclude him from establishing entitlement on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) The Veteran has been diagnosed with sick sinus syndrome and hypertrophic cardiomyopathy. Thus, the first element of Shedden is met. The Veteran maintains that his heart condition is a result of exposure to herbicide agents. See September 2015 Correspondence. As he had active service in the Republic of Vietnam during the Vietnam era, he meets the requirements for a presumption of herbicide exposure. The second element of Shedden is met. As to the third element of Shedden, a medical nexus, the probative medical evidence is against the claim. In September 2021, an addendum opinion was provided. The VA examiner determined that the Veteran's sick sinus syndrome and hypertrophic cardiomyopathy were less likely related to this active service, to include his presumed exposure to herbicide agents. The VA examiner found that the Veteran's report of medical history and examination on separate did not reveal a history or physical examination findings for ongoing acute or chronic treatment of sick sinus syndrome or hypertrophic cardiomyopathy condition. The VA examiner explained that the most common cause of sick sinus syndrome is gradual loss of SA node function that comes with age, and that hypertrophic cardiomyopathy is most often caused by abnormal genes in the heart muscles. As to the latter, he explained that these genes cause the walls of the heart chamber to contract harder and become thicker than normal, and that the thickened walls become stiff. The examiner specified that both sick sinus syndrome and hypertrophic cardiomyopathy are not caused by herbicide agent exposure. Both heart conditions were noted to have had their onset after discharge from active military service and were not otherwise etiologically related to the Veteran's active service. As a general matter when assessing a claim, the Board may not consider the absence of evidence as negative evidence unless it is the type of information that would necessarily have been of record. See Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); see also Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011). Lapse of time between service separation and the earliest documentation of a heart disability is a factor for consideration in deciding a service connection claim. See also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Here, the time lapse between discharge and treatment is of significant probative value. The Board finds that the absence of evidence in this case can be inferred as negative evidence, since it is the type of evidence that one would reasonably expect to be in the record. The Board agrees with the VA examiners finding that the evidence weighs against a finding that the Veteran's heart condition began in service as the treatment records do not show ongoing acute or chronic treatment for his heart conditions. While the Veteran believes that his heart conditions are related to his active military service, to include herbicide agent exposure, he is not competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education and knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, and of significant probative value, the negative VA opinion was rendered by a medical professional with specialized training. The VA medical opinion outweighs the lay reports from the Veteran. The 2021 examiner explained that the Veteran's sick sinus syndrome and hypertrophic cardiomyopathy are due to, respectively, age and genetics. There are also no competent medical opinions that conflict with the negative VA opinion. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the preponderance of the evidence weighs against a finding that the Veteran's heart conditions began in or are related to his active military service, to include his exposure to herbicide agents. The claim for service connection for a heart condition must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Smith, 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.