Citation Nr: 21008252 Decision Date: 02/12/21 Archive Date: 02/12/21 DOCKET NO. 17-12 769 DATE: February 12, 2021 ORDER Entitlement to service connection for atrial fibrillation is denied. FINDING OF FACT The Veteran’s atrial fibrillation is less likely than not related to service, to include his conceded herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for atrial fibrillation have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from July 1959 to April 1963 and again from July 1963 to June 1970. He testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in December 2018. A transcript of the hearing is of record. Entitlement to service connection for atrial fibrillation. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 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 U.S.C. § 1116(f); 38 C.F.R. § 3.307(a)(6). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309, will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 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 C.F.R. § 3.307(d) are also satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes), Hodgkin’s disease, 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), all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia), multiple myeloma, non-Hodgkin’s lymphoma, Parkinson’s disease, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e). The National Defense Authorization Act for Fiscal Year 2021 has added three disorders to the list of diseases presumptively associated with exposure to herbicide agents. Specifically, it amended 38 U.S.C. § 1116(a)(2) to include parkinsonism, bladder cancer, and hypothyroidism. Atrial fibrillation is not included within the presumptive disabilities. However, notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents, is not precluded from establishing service connection for such disability as due to herbicide exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). A December 2014 VA examination report confirms a diagnosis of atrial fibrillation. In addition, the Veteran has contended that during service, he was diagnosed with atrial fibrillation and his herbicide exposure has been conceded. His service treatment records do not show a diagnosis of, or treatment for, atrial fibrillation. However, in May 1961, he was seen for pain over cardiac area. The impression was “a pseudo-angina type problem.” There was no further workup and on reenlistment in July 1963 as well as on several different examinations during active duty, he denied experiencing shortness of breath, pain or pressure in chest, and his heart was found to be clinically normal. Regardless, the first and second elements of service connection have been met. Therefore, the question before the Board is whether there is a so-called “nexus” between the Veteran’s atrial fibrillation and service. The weight of the evidence weighs against the Veteran’s claim. In December 2014, a VA examiner opined that the Veteran’s atrial fibrillation was less likely than not related to service, to include his conceded exposure to herbicide. As rationale, the examiner stated: Review of SMRs reflects that Veteran was evaluated for chest pain/agnina in 1961, but no specific diagnosis related to a cardiac condition was made. Records do not reflect that [he] was evaluated or treated for a cardiac condition until treated for atrial fibrillation in 2011. Documentation from records do not reflect that Veteran had sustained a myocardial infarction-either in 1961 or in subsequent years leading up to episode of atrial fibrillation in 2011. There is no chronicity of symptomatology or documentation to support a relationship between symptoms which were present in 1961 and atrial fibrillation which developed approximately 50 years later. In May 2019, the Board remanded the Veteran’s claim as he contended at his Board hearing that he had been diagnosed with atrial fibrillation in the Navy in 1961. Since that time, he reported experiencing heart-related symptoms including shortness of breath and essentially becoming dazed. The Board also directed the RO to confirm whether or not the Veteran was exposed to herbicides and, if so, whether his atrial fibrillation was at least as likely as not directly related to such exposure. The March 2020 Supplemental Statement of the Case (SSOC) conceded herbicide exposure. Specifically, the RO stated: As you were aboard the USS Rogers DDR-876 at the time it anchored in Coast of the Republic of Vietnam on May 25, 1966, we concede you were exposed to Agent Orange herbicide[s] based upon your service in the eligible offshore waters of the Republic of Vietnam. As a result of the Board’s remand, an additional VA medical opinion was obtained in February 2020. The examiner opined that the Veteran’s atrial fibrillation was less likely than not related to service to include his conceded herbicide exposure as the condition “occurred many years after separation. Despite extensive studies there is neither a consensus of evidence in medical literature or in the medical community that supports a causal relationship between [atrial fibrillation] and presumed Agent Orange exposure during Vietnam service.” In October 2020, the Board again remanded the Veteran’s claim, finding the February 2020 VA medical opinion to be incomplete as the examiner did not consider the Veteran’s lay statements regarding his in-service diagnosis of atrial fibrillation as well as his reports of heart-related symptoms since service. Additional VA medical opinion was obtained in November 2020. The examiner again opined that the Veteran’s atrial fibrillation was less likely than not related to service, to include his conceded exposure to herbicides. In so finding, the examiner specifically considered the Veteran’s lay reports. In response to those reports, the examiner noted that the Veteran’s April 1963 Report of Medical Examination revealed that his heart was normal with no mention of irregular pulses. No EKG results were stated and there was no mention of atrial fibrillation or any other heart condition. Another July 1963 Medical Examination also revealed that the Veteran’s heart was normal with no mention of irregular pulses. That same day, the Veteran denied experienced palpitation or pounding heart, heart trouble, shortness of breath, or pain or pressure in the chest. Further, a March 1969 Report of Medical History form indicates that the Veteran again denied palpitation or pounding heart, heart trouble, shortness of breath, or pain or pressure in the chest. On examination in March 1969, the Veteran’s heart was found to be clinically normal with no mention of atrial fibrillation or any cardiac issues. No mention was made of any abnormal results on the EKG section. A June 1970 report states the Veteran was examined and found to be physically qualified for discharge. The separation examination revealed that the heart was normal with no mention of atrial fibrillation or any cardiac issues. No mention was made of any abnormal results on the EKG section. Moreover, June 1972, July 1974, June 1976, July 1977, July 1978, and November 1979 Report of Medical Examination forms reveal that the Veteran’s heart was normal with no atrial fibrillation or any cardiac issues. The Veteran again denied palpation or pounding of chest, heart trouble, shortness of breath, or pain or pressure in the chest. Regarding the Veteran’s reports that he was told he had atrial fibrillation during service, the examiner explained: The diagnosis of atrial fibrillation requires the objective documentation of its presence from an EKG or Holter monitor. The perception of palpitations by an individual is not conclusive in diagnosing atrial fibrillation. Rather it is only the beginning for a diagnostic evaluation. Therefore[,] any comments by an individual without objective documentation would be an unsupported rationale. In this individual’s case there are no EKG or Holter monitor studies seen or tabbed that confirm the presence of atrial fibrillation. His medical history forms and physical examinations over many years does not present any evidence that would make one suspicious for or conclude that atrial fibrillation was present while on active duty. As to the Veteran’s exposure to herbicides, the examiner stated: For his atrial fibrillation, when it was diagnosed sometime in 2009[,] the Veteran was about 75 years old then, had hypertension, and was obese. Those are known risk factors that predispose one to develop atrial fibrillation. These known risk factors are more plausible in the development of atrial fibrillation than a hypothetical or speculative explanation for atrial fibrillation arising from the Agent Orange exposure. Regarding the potential theory that the Veteran had atrial fibrillation during service which resolved and caused less severe symptoms, the examiner went on to explain the different types of atrial fibrillation. He further stated: In atrial fibrillation, the heart rate is irregular and can sometimes be very fast. In some cases, it can be considerably higher than 100 beats a minute. This can cause problems including dizziness, shortness of breath[,] and tiredness. You may be aware of noticeable heart palpitations, where your heart feels like it’s pounding, fluttering or beating irregularly, often for a few seconds or, in some cases, a few minutes. Sometimes atrial fibrillation does not cause any symptoms and a person who has it is completely unaware that their heart rate is irregular. However, the examiner further explained: Most often individuals with atrial fibrillation are symptomatic in one way or another with the presence of palpitations, shortness of breath, and fatigue at the same time. It would be unlikely that the Veteran had atrial fibrillation while on active duty since his history and physical examination[s] [were] not supportive of it over many years in terms of a lack of symptoms and physical findings. Atrial fibrillation in this Veteran’s case was triggered by his age, obesity, and hypertension which [are] known risk factors that he had at the time of his atrial fibrillation onset . . . Such conditions were not present when he was on active duty and was much younger then. The Board finds the November 2020 VA examination, together with the February 2020 report, highly probative. The examiners considered the Veteran’s entire medical history as well as his lay statements and provided clear conclusions with supporting rationale. They explained that EKG or Holter monitor studies are required for diagnosis of atrial fibrillation and that it would be very unlikely for someone to experience atrial fibrillation without any symptoms. The Veteran had several known risk factors for the development of atrial fibrillation and as a result of service or herbicide exposure. Further, the February 2020 noted that there is neither a consensus of evidence in medical literature or in the medical community that supports a causal relationship between atrial fibrillation and presumed Agent Orange exposure during Vietnam service. There are no medical opinions of record in support of the Veteran’s claim. The Board acknowledges the Veteran’s lay statements and contentions regarding his atrial fibrillation. Indeed, the Board remanded his claim so that his lay reports could be considered. However, in this instance, the Board affords more probative weight to the February 2020 and November 2020 VA medical opinions of record. Although the Veteran sincerely believes that he experienced cardiac symptoms post-service and that his atrial fibrillation is related to service, he has not demonstrated that he has the necessary medical expertise to relate specific symptoms to his heart or to determine the cause of his atrial fibrillation. Therefore, his assertions are outweighed by the probative VA medical opinions of record. The preponderance of the evidence therefore weighs against the Veteran’s claim for service connection for atrial fibrillation. Accordingly, the claim must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.