Citation Nr: 21066651 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-35 584 DATE: November 1, 2021 ORDER Entitlement to service connection for a cardiovascular disorder, to include ischemic heart disease (claimed as a trans-ischemic attack) and as due to herbicide agent exposure is granted. Entitlement to service connection for a left eye disability, claimed as central retinal artery occlusion, to include as due to a cardiovascular disorder, is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his cardiovascular disorder is at least as likely as not related to herbicide agent exposure during service in Vietnam. 2. Resolving reasonable doubt in the Veteran's favor, his left eye disability is at least as likely as not the result of or proximately due to his service-connected cardiovascular disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cardiovascular disorder as due to in-service herbicide agent exposure are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307(a)(6), 3.309(e). 2. The criteria for entitlement to service connection for a left eye disability as secondary to his cardiovascular disorder are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran died on March [REDACTED], 2020 and in May 2020 the appeal was dismissed due to the Veteran's death. In August 2020, the RO accepted the Veteran's son's request for substitution. 38 U.S.C. § 5121A. Subsequently, in May 2021 the Appellant's claims were remanded by the Board and, for the reasons described herein, the Board finds substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection 1. Cardiovascular Disorder 2. Left Eye Disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For certain diseases with a relationship to herbicide agent exposure, such as ischemic heart disease, a presumption of service connection arises if the disease manifests to a degree of 10 percent or more following service in the Republic of Vietnam any time during the period from January 9, 1962 to May 7, 1975. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Absent a presumption based on service in Vietnam, service connection may be established on a direct basis if the evidence shows that a current disability was, in fact, caused by exposure to herbicide agents or some other incident of service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Turning to the evidence of record, the military personnel records reflect service aboard the U.S.S. Arikara in 1965 to 1966. This ship is recognized as sailing within the inland waters of Vietnam. In February 2014, VA records indicate he suffered a stroke, classified as a "trans-ischemic attack," which resulted in left eye blindness due to central artery occlusion and carotid stenosis. In October 2019, VA records indicate he had "mild atherosclerosis of thoracic aorta." In December 2019, he underwent a VA heart conditions examination report which determined he did not have a diagnosed heart condition. Also, in December 2019, he underwent a VA eye conditions examination report which determined his eye condition was not the result of active service. In January 2020, a VA record indicates a chest study revealed the following: Again, noted is coronary atherosclerosis, ectatic ascending aorta measuring a maximum of 4.4 cm diameter, heavy atherosclerotic calcifications in the arch and origins of arch vessels. Main pulmonary artery measures 2.9 cm in diameter. In May 2021, the Board remanded the Veteran's claims for further development after determining the December 2019 VA opinions were inadequate. Specifically, although the examiner concluded the Veteran had no current diagnosis of a heart condition, the examiner failed to address whether he was diagnosed with a heart condition at any time during the appeal period. Additionally, although the examiner opined that it is less likely than not that his central retinal artery occlusion is due to active service, the examiner failed to provide adequate rationale in support of that conclusion. In June 2021 VA addendum opinions were acquired. First, as to his alleged cardiovascular disorders, the addendum opinioned determined he did not have a diagnosed cardiovascular disorder and the opinion reads as follows: The Veteran did not have a diagnosis of coronary artery disease/ischemic heart disease. This is documented on the heart DBQ. The Veteran had a negative stress test in 2014 and a negative chemical stress test in 2016. The ejection fraction at that time was 75%. The Veteran's diagnosis of stroke/transient ischemia refers to the Veteran's eye condition. This is confirmed on the eye DBQ dated 12/2/19. This is unequivocal. Therefore, the Veteran did not have documented coronary artery disease or ischemic heart disease, at least as late as March 2016. There is no evidence of coronary artery disease through the time of death and no evidence of coronary artery disease is noted on the death certificate... As there is no coronary artery disease diagnosed, there is no coronary artery disease attributable to Agent Orange exposure. As to whether his eye condition was the result of his alleged cardiovascular disorder, the opinion noted, "there is a known correlation between ischemic heart disease and retinal artery occlusion. Where the underlying condition of blockage of heart vasculature can pass on to the retinal artery and cause occlusion." After a review of the claims file in conjunction with the applicable laws and regulations, the Board finds the evidence of record is in relative equipoise as to whether his cardiovascular disorder is the result of in-service herbicide agent exposure. Additionally, resolving reasonable doubt in the Veteran's favor, his left eye disability is at least as likely as not due to or the result of his cardiovascular disorder. As to his cardiovascular disorder, based on his SPRs and DD-214 the Veteran served in the waterways surrounding the Republic of Vietnam and is presumed to have been exposed to herbicide agents during service. See 38 C.F.R. § 3.307(a)(6)(iii). As to a diagnosed disability during the appeal period, the Board acknowledges the June 2021 VA opinion; however, that opinion is inadequate for VA ratings purposes. Specifically, in January 2020, he was diagnosed with "coronary atherosclerosis" which is a form ischemic heart disease as specifically described in 38 C.F.R. § 3.309(e). And yet, the June 2021 VA examiner stated the evidence of record did not indicate he was diagnosed with a cardiovascular disability. As such, considering clear evidence to the contrary, the Board finds it cannot reasonably rely on this opinion and it provides little probative value. Moreover, the evidence indicates the Veteran was diagnosed with a form of ischemic heart disease prior to his death. Given the Veteran's presumed exposure to herbicide agents and the January 2020 diagnosis of a presumptive disease, his ischemic heart disease is presumptively service connected. Thus, the Veteran and Appellant's claim of entitlement to service connection for a cardiovascular disorder to include ischemic heart disease and claimed as a trans-ischemic attack, is granted. As to his claim for a left eye disability as secondary to his service-connected cardiovascular disorder, as of the date of this decision, the Veteran is service-connected for a cardiovascular disorder and has a diagnosed eye disability. Thus, he fulfills the first and second requirements for secondary service connection. See Allen, 7 Vet. App. at 448 (1995); 38 C.F.R. § 3.310. Moreover, the June 2021 VA addendum opinion stated, "there is a known correlation between ischemic heart disease and retinal artery occlusion." Furthermore, the evidence of record does not contain any other evidence to counter this opinion. As such, granting the benefit of the doubt to the Veteran, the Board finds his left eye disability is the result of or proximately due to his service-connected cardiovascular disorder and the benefit of the doubt rule applies. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Therefore, the Veteran and Appellant's claim of service connection for a left eye disability as secondary to his service-connected cardiovascular disorder, is granted. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.