Citation Nr: 21008982 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-31 362A DATE: February 18, 2021 ORDER Service connection for heart disease is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s heart disease began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for heart disease have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1967 through June 1969, including service in the Republic of Vietnam from November 1967 to November 1968. His decorations include the Purple Heart Medal and the Bronze Star Medal with “V” Device. Unfortunately, the Veteran died in September 2018, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in October 2017. This matter was remanded by the Board in January 2018 and August 2020 for additional development. 1. Service connection for heart disease. To establish service connection for a claimed disorder, the following criteria must be met: (1) medical evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. 38 C.F.R. § 3.303; see also, Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active duty military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be established by credible lay evidence and medical evidence provided by the Veteran or otherwise. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be found on a secondary basis where the following criteria is met: (1) a current disability that is not already service-connected; (2) at least one service-connected disability; and, (3) evidence that the non-service-connected current disability is either proximately due to or as the result of a service-connected disability; or, aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310 (2018); see also, El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995). In January 2018, the Board remanded the Veteran’s claim for service connection for heart disease in order to provide the Veteran with a VA examination to obtain needed medical opinions as to his diagnoses and origins of any heart diseases, given the Veteran’s presumptive exposure to herbicides due to his service in the Republic of Vietnam. The remand also requested an examiner to address the Veteran’s claims that he has heart disease due to his already service-connected diabetes mellitus and/or his military service, the competent and credible claims of having observable symptoms of heart disease, and the abnormal heart findings found in the November 2009 echocardiogram (abnormal relaxation of the left ventricle), the July 2010 VA examination (diagnosed congestive heart failure), and the May 2012 private treatment records noting atrial flutter. In compliance with the January 2018 remand, the Veteran was afforded a medical opinion in May 2020 and addendum opinions in July 2020 by the same examiner. After a review of the Veteran’s record, the examiner opined that it is less likely than not that the Veteran’s diagnosed typical atrial flutter and persistent atrial fibrillation are related to or had their onset in service, including his presumptive exposure to herbicides due to his documented service in the Republic of Vietnam. The examiner further opined that it is less likely than not that the Veteran’s diagnosed heart disease was aggravated by the Veteran’s service-connected diabetes mellitus and/or peripheral neuropathy. In offering these opinions, the examiner noted that the Veteran’s service treatment records are silent for any evidence of diagnosis of hypertension while in service, stated that hypertension is not considered a presumptive diagnosis for veterans exposed to Agent Orange, and noted that the Veteran has Type II diabetes mellitus without complication. The examiner also noted that it is not uncommon for individuals with uncontrolled hypertension to develop a moderately dilated left atrium, and subsequently, typical atrial flutter and persistent atrial fibrillation. The Board is required to consider theories of entitlement to benefits that are either raised by the claimant or reasonably raised by the record. See Lynch v. Wilkie, 30 Vet. App. 296, 304 (2018). Here, because an unclaimed condition, i.e., hypertension has caused or aggravated his heart conditions, VA must investigate whether hypertension is a disability of service origin, thus potentially providing a link between the Veteran’s heart conditions and service. See DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). This is required because veterans as lay claimants may not have the medical or legal expertise to identify the precise disability for which they are seeking compensation, and VA has a duty to liberally construe their filings. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Further, as the Veteran served in the Republic of Vietnam, he is presumed to have been exposed to tactical herbicides. 38 C.F.R. § 3.307(a)(6). Although hypertension is not presumed to have been caused by exposure to tactical herbicides, 38 C.F.R. § 3.309, VA is required to consider service connection due to exposure to herbicides on a non-presumptive basis. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In August 2020, the Board remanded this issue to obtain a medical opinion that addressed the Veteran’s hypertension and its relationship to his heart disease. The Board specifically asked for the opinion to address a November 2018 National Academy of Sciences Institute of Medicine (NAS) study, which concluded that there is now evidence of a positive association between hypertension and exposure to tactical herbicides. In November 2020, a VA examiner reviewed the Veteran’s record and opined that it is less likely than not that the Veteran’s diagnosed heart conditions, including typical atrial flutter, persistent atrial fibrillation, and congestive heart failure, are related to or had their onset in service, to include presumed in-service tactical herbicide exposure. The examiner reasoned that the Veteran’s service treatment records and subsequent medical records do not show evidence of diagnosis, treatment, or symptoms suggestive of a coronary condition while on active duty or within one year of separation. The evidence also does not show diagnosis of an ischemic heart condition. Instead, the Veteran was diagnosed with atrial fibrillation and congestive heart failure, due to atrial fibrillation, which have not been associated with herbicide exposure. The examiner also opined that the Veteran’s hypertension was less likely than not incurred in or caused by an in-service injury, event, or illness. The examiner reasoned that the November 2018 NAS study only applied to Veterans with direct herbicide agent exposure risk and not to general ground troops in Vietnam that likely only had incidental herbicide agent exposure, such as the Veteran. The examiner also noted the general prevalence of hypertension in populations greater than 55 years old. Thus, because the examiner opined that the Veteran did not have hypertension related to service, to include his presumed Agent Orange exposure while serving in combat in Vietnam, there was no reason to opine as to the relationship between the Veteran’s heart disease and hypertension, and indeed, in the August 2020 remand, the Board did not request that the examiner do so. Here, the Board ascribes significant probative value to the November 2020 medical opinion that the Veteran did not have a heart condition that had its onset during service or is otherwise etiologically related to service, to include presumed herbicide exposure, or a service-connected disability. The examiner’s opinion is well reasoned and is based upon consideration of the Veteran’s prior medical history and examinations. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) The appellant has submitted no competent evidence to refute the November 2020 medical opinion. The appellant’s opinion that the Veteran’s heart condition is related to service, to include herbicide exposure, or his service-connected disabilities is not competent as she lacks the medical experience and training needed to diagnose or opine as to the etiology of a complex disorder. Based on the foregoing, the Board finds that the preponderance of the evidence is against the claim and therefore that service connection for a heart disorder is not warranted. In reaching its decision, the Board has duly considered the benefit-of-the-doubt doctrine but has found that a preponderance of the evidence weighs against the appellant’s claim. As such, the doctrine is inapplicable, and the claim must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.