Citation Nr: 21068322 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-41 672 DATE: November 10, 2021 ORDER Entitlement to service connection for a heart disability diagnosed as cardiomyopathy as secondary to the service-connected diabetes mellitus is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, the diagnosed cardiomyopathy was aggravated by his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria to establish service connection for cardiomyopathy are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1965 to February 1969. This appeal stems from March 2015 and April 2016 rating decisions. In October 2019, August 2020, and June 2021, the Board remanded the claim for further development, to include obtaining an adequate medical opinion regarding the likely etiology of the claimed heart disability. Service Connection for a Heart Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). The Veteran is presumed to have been exposed to herbicide agents based on his service in Vietnam during the applicable time period. 38 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). VA laws and regulations provide that if a Veteran was exposed to herbicide agents during service, certain listed diseases are presumptively service connected. 38 U.S.C. § 1116(a)(1); 38 C.F.R. § 3.309(e). 38 C.F.R. § 3.309(e) lists the diseases covered by the regulation, which includes ischemic heart disease. Service connection may be presumed for ischemic heart disease for a Veteran exposed to an herbicide agent during service if the disease manifested to a degree of ten percent or more any time after service. 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A claimant bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). In making its ultimate determination, the Board must give an appellant the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Id. at 1287 (quoting 38 U.S.C. § 5107(b)). Analysis The Veteran asserts that he has a heart disability that is related to exposure to herbicide agents in Vietnam or alternatively caused or aggravated by his service-connected diabetes mellitus. The Veteran is diagnosed with cardiomyopathy. See e.g., August 2021 addendum opinion. The Veteran's exposure to herbicide agents while serving in the Republic of Vietnam is presumed. However, VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). Because the Veteran's cardiac diagnoses are not listed under § 3.309(e) as diseases that are associated with exposure to herbicide agents, the presumption of service connection due to such exposure is not warranted. Specifically, the Veteran is not diagnosed with ischemic heart disease. The Board now turns to the issue of entitlement to service connection on a direct basis and as secondary to a service-connected disability. Turning to the evidence, the December 2019 VA examiner opined that the Veteran's heart disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. However, the focus of the rationale was whether or not the Veteran had ischemia or ischemia-causing heart problems, presumably in order to determine whether the Veteran met the criteria for presumptive service connection related to exposure to herbicide agents. He stated that if a cardiologist found myocardial infarction or coronary artery disease, then presumptive service connection would be established. Regarding the Veteran's non-ischemic heart disease, the examiner merely stated that the etiology of his cardiomyopathy was not known. No other explanation or discussion was provided. The December 2019 VA examiner did not provide an opinion regarding secondary service connection but noted that although a 2009 article stated that DM could cause microvascular changes, the Veteran's DM developed much later than his heart disorder. In a January 2020 addendum, a different physician opined that the Veteran's heart disorder was less likely than not proximately due to or the result of the Veteran's service-connected disabilities. However, he did not provide any rationale but merely cut and pasted the rationale provided in the December 2019 examination report regarding the evidence and how review by a cardiologist was required. He also did not address whether the Veteran's heart disorder was aggravated by any service-connected disability. No opinion was provided in the June 2020 VA addendum regarding secondary service connection. Rather than providing an opinion, the June 2020 VA examiner stated that the Veteran was not diagnosed with DM but rather with impaired fasting glucose. However, the Veteran had already been service-connected for DM in an October 2017 rating decision. Moreover, the examiner did not address whether there was a relationship between the Veteran's heart disorder and his service-connected peripheral neuropathy. In August 2020, the Board remanded the appeal for a VA addendum to more completely evaluate the nature and etiology of the Veteran's heart disorder. Specifically, it requested: (1) that all cardiac diagnoses be identified, including whether the Veteran met the diagnostic criteria for a type of IHD or whether the prior diagnosis of non-ischemic heart disease still stood; (2) an opinion as to whether the Veteran's heart disorder at least as likely as not had its onset during active service or was otherwise related to it, including exposure to herbicide agents; and (3) an opinion as to whether the Veteran's heart disorder at least as likely as not was caused or aggravated by any service-connected disabilities, to include diabetes mellitus type II (DM) and peripheral neuropathy. In a Disability Benefits Questionnaire (DBQ) completed in September 2020, the VA examiner, a cardiologist, opined that the Veteran's heart disability is less likely as not related to service, stating that herbicide exposure in service was not documented. The examiner also stated that there is no evidence of coronary artery disease or ischemia and that the Veteran's non-ischemic cardiomyopathy occurred later after service and there is no direct service connection between that diagnosis and herbicide exposure. In a separate September 2020 DBQ, the examiner confirmed that the Veteran does not meet the criteria for ischemic cardiomyopathy. In another separate September 2020 DBQ, the examiner provided with what appears to be a negative opinion regarding whether the Veteran's heart condition is etiologically related to his service-connected DM and neuropathy, noting that DM was diagnosed in 2019 so there cannot be a progression. First, the September 2020 opinion on the question of direct service connection is inadequate because it appears to rely solely on the fact that the Veteran's cardiomyopathy was not diagnosed in service. Second, the examiner's rationale regarding the question of secondary service connection is deficient because aggravation due to a service-connected disability need not have occurred during service and aggravation of the Veteran's heart disorder is not restricted to being a progression of the service-connected disability. According to a November 2020 QTC addendum, the same examiner stated that herbicide exposure can cause inflammation in the heart and cause coronary artery disease. The examiner went on to say that the Veteran was exposed to herbicides hence, his heart condition is connected to service. However, the examiner related herbicide exposure to the development of coronary artery disease, but in this case, the medical evidence clearly shows that the Veteran does not have ischemia/coronary artery disease. With regard to the question of secondary service connection, the examiner acknowledged that diabetes could aggravate a heart condition and then opined that the Veteran's heart condition is as likely aggravated beyond its natural progression by his diabetes. However, the examiner did not specify what type of heart condition is aggravated by DM, and more specifically, did not address whether the Veteran's non-ischemic cardiomyopathy is aggravated by the DM. To make matters more confusing, the same examiner in December 2020 opined that the Veteran's heart disorder was less likely than not aggravated beyond its natural progression by DM with neuropathy as the Veteran was taken off medication and "was doing good." See DBQ signed in February 2021. For these reasons, the Board finds the opinions inadequate. Most recently, VA obtained an August 2021 addendum opinion, in which the examiner explained that the diagnosed heart disability was less likely than not related to exposure to herbicide agents. The examiner explained that there was lack of support in the medical literature suggesting a correlation between the Veteran's diagnosed conditions and the conceded exposure to herbicide agents. Nevertheless, the examiner opined that the diagnosed nonischemic cardiomyopathy was at least as likely as not proximately due to the service-connected diabetes mellitus. The examiner further opined that the nonischemic cardiomyopathy was aggravated by the service-connected diabetes mellitus. In support, the examiner cited to specific medical literature supporting this conclusion. Subsequently, in a September 2021 addendum opinion, the examiner changed the positive opinion to a negative opinion after the RO notified the examiner that the Veteran was diagnosed with diabetes mellitus prior to cardiomyopathy. However, while the examiner explained that because of this diabetes mellitus could not have caused cardiomyopathy, the examiner concluded that therefore it could also not have aggravated the disability. On review of all the evidence, lay and medical, the Board finds that service connection on a direct basis is not warranted. Specifically, the Board assigns high probative weight to the 2021 examiner's opinion, which explained that there was no medical literature supporting that exposure to herbicide agents could cause any of the Veteran's heart conditions. In addition, the examiner explained that due to lack of symptoms and/or diagnosis of a heart condition in service or for decades later it was less likely than not that the diagnosed disability had its onset during active service or was otherwise related to it. Nevertheless, the Board finds that service connection on a secondary basis is warranted. Specifically, the evidence supports that the diagnosed cardiomyopathy was aggravated by the service-connected diabetes mellitus. In this regard, the 2021 examiner supported this conclusion by citing to specific medical literature that confirmed that diabetes mellitus is known to aggravate cardiomyopathy. The Board finds that the fact that the September 2021 examiner stated that diabetes preexisted cardiomyopathy is irrelevant to the issue of aggravation. In this regard, the Board notes the United States Court of Appeals for Veterans Claims in Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) held aggravation under 38 C.F.R. § 3.310(b) does not require that there be "permanent worsening" of the nonservice connected disability. (Continued on the next page) Accordingly, given the positive August 2021 opinion that was supported by rationale and medical literature indicating that diabetes at least as likely as not aggravated cardiomyopathy, service connection is warranted on a secondary basis. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.