Citation Nr: A21020448 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 211005-189004 DATE: December 22, 2021 ORDER Entitlement to service connection for a heart disorder, claimed as ischemic heart disease, claimed as due to exposure to herbicide, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had ischemic heart disease at any time during or approximate to the pendency of the claim. 2. The preponderance of the evidence is against finding that the Veteran's valvular heart disease began or was manifest during service, manifested to a compensable degree within one year of service, or is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide. CONCLUSION OF LAW The criteria for service connection for a heart disorder, claimed as ischemic heart disease, claimed as due to exposure to herbicide, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1963 to September 1967, including service in the Republic of Vietnam. The Board thanks him for his service to our country. In June 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2021 supplemental claim decision that found that new and relevant evidence had been received, and confirmed and continued a previous denial of service connection for ischemic heart disease. In August 2021, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior April 2021 decision. The August 2021 decision noted that the Veteran submitted a supplemental claim in May 2020 along with additional medical records. It stated that new and relevant evidence had been received, apparently referring to the evidence submitted prior to the April 2021 supplemental claim decision as the Veteran submitted no evidence after it, and confirmed and continued the previous denial of service connection for ischemic heart disease. In the October 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2021 decision. 38 C.F.R. § 20.301. Entitlement to service connection for a heart disorder, claimed as ischemic heart disease, claimed as due to exposure to herbicide. The Veteran contends that he now has ischemic heart disease due to exposure to herbicide in Vietnam. The August 2021 decision on appeal made favorable findings that the Veteran performed service in the Republic of Vietnam, had sufficient service to meet the minimum requirement for presumptive service connection and was exposed to herbicides during military service. 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). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, such as ischemic heart disease, shall be service connected if the requirements of 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113; 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). As the Veteran's exposure to herbicides is presumed, service connection would be warranted if ischemic heart disease became manifest to a degree of 10 percent or more at any time after service. 38 C.F.R. §§ 3.307 (6)(ii); 3.309 (e). Valvular heart disease is not on the list of presumptive disabilities associated with exposure to certain herbicide agents. The Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 75 Fed. Reg. 32540 (June 8, 2010). That said, certain chronic diseases, including endocarditis (a term which covers all forms of valvular heart disease), will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a one-year presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Even if a disorder is not entitled to a regulatory presumption, service connection may be established with evidence of direct causation under 38 U.S.C. § 1110; 38 C.F.R. § 3.303, as set forth above. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The question for the Board is whether the Veteran has ischemic heart disease manifested to a degree of 10 percent or more at any time after service, or whether his valvular heart disease began or was manifest during service, manifested to a compensable degree within one year of service, or is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide. The Board concludes that, while exposure to herbicide is presumed, the preponderance of the evidence weighs against finding that the Veteran has ischemic heart disease or that his valvular heart disease began or was manifest during service, manifested to a compensable degree within one year of service, or is at least as likely as not related to an in-service injury, event, or disease, including exposure to herbicide. The Veteran's service treatment records do not show any complaints, symptoms, findings or diagnoses related to a heart disorder. His August 1967 separation medical examination report shows that his heart was normal on clinical evaluation. The corresponding August 1967 separation report of medical history contains no relevant complaints or physician's summary and elaboration. Post-service VA and private treatment records do not show treatment for or a diagnosis of ischemic heart disease. They do not show valvular heart disease within one year of separation, or in fact for many years after the Veteran's separation from active duty. Service incurrence may be rebutted by the absence of medical treatment or diagnosis for the claimed condition for many years after service. Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Horn v. Shinseki, 25 Vet. App. 231, 240 n.7 (2012). Consequently, the Board finds the fact that the first medical evidence of valvular heart disease was many years after the Veteran's service suggests strongly, (although it does not disprove altogether,) that his heart disorder was incurred during, or is related to, his active military service. The report of a VA Heart Conditions Acceptable Clinical Evidence (ACE) examination and a corresponding VA Medical Opinion by the same VA examiner are dated in June 2020. However, each document was associated with the Veteran's e-folder in April 2021. The examination report specifically refers to a March 2021 private echocardiogram and repeats its findings. Accordingly, the Board finds that the VA examiner conducted the ACE examination and offered the Medical Opinion after the March 2021 private echocardiogram, most likely in April 2021. The ACE examination report is based on a review of the Veteran's records and provides a sole diagnosis of valvular heart disease, which it states was made in 2021. The etiology for valvular heart disease was unknown. The Veteran's records included no documentation of heart disease. A March 2021 ECHO incidentally showed mild aortic regurgitation without symptoms. The report makes the specific finding that the Veteran's heart condition did not qualify within the generally accepted medical definition of ischemic heart disease. The Medical Opinion provides that the Veteran's heart disease was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The rationale was that the Veteran was exposed to Agent Orange herbicide while in Vietnam. He had increased risk to get certain conditions, including coronary artery disease. The Veteran's valvular heart disease was not related to Agent Orange. There was no pathophysiological relationship between the two conditions. Therefore, it was less likely than not that the Veteran's coronary artery disease/heart condition was due to military service. The Board finds the VA examination report and Medical Opinion are probative medical evidence against the Veteran's claim. They are probative evidence that he does not have ischemic heart disease, and his valvular heart disease is not due to active duty. The Board finds it noteworthy that they are based on an accurate review of the Veteran's entire medical history. The examiner sets forth clear, well-reasoned conclusions with specific references to the Veteran's medical records and his own medical knowledge and expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008). Significantly, the record contains no medical evidence against the VA examination report and Medical Opinion. While the Veteran believes that he now has ischemic heart disease due to exposure to herbicide during active duty, as a layperson he is not competent to opine as to this complex medical matter. Specialized medical training and expertise are required. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence discussed above. In light of the above, the Board finds that service connection for a heart disorder, claimed as ischemic heart disease, claimed as due to exposure to herbicide, is not warranted and must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.