Citation Nr: 21011201 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-18 716A DATE: March 1, 2021 ORDER Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD), is denied. REMANDED Entitlement to service connection for hypertension, claimed as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s resolved viral cardiomyopathy began during active service, or is otherwise related to an in-service injury or disease, and it is also against finding that the Veteran has had IHD or any other heart-related disability aside from residuals of the resolved viral cardiomyopathy at any time during or approximate to the pendency of the claim. CONCLUSION OF LAW The criteria for service connection for a heart disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1969 to December 1970, which included service in the Republic of Vietnam from December 1969 to December 1970. He received the National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2011 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 1. Entitlement to service connection for a heart disability, to include ischemic heart disease (IHD), The Veteran claims entitlement to service connection for IHD and cardiomyopathy as due to his presumed exposure to Agent Orange, an herbicide agent. See Appellant’s Brief dated August 9, 2017; VA Form 21-4138, Statement in Support of Claim received April 19, 2002. Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active service. 38 U.S.C. § 1110. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Without evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 C.F.R. § 3.303(d). Additionally, where a veteran served 90 days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Furthermore, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected (except as provided in § 3.300(c)) and any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310. Finally, if a veteran was exposed to an herbicide agent during active service, certain diseases, including ischemic heart disease, but not including hypertension, shall be service connected if manifest to a degree of 10 percent disabling or more at any time after service. 38 C.F.R. § 3.307(a)(6). 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 C.F.R. § 3.307(a)(6)(iii). In this context, IHD includes, but is 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). 38 C.F.R. § 3.309(e). Here, the Board notes, as indicated above, that the Veteran served in the Republic of Vietnam from December 1969 to December 1970, and therefore is presumed to have been exposed to herbicides. See military personnel records received February 2, 2015. The Board also notes that the Veteran is not competent to diagnose himself with ischemic heart disease or any other heart disability. Such issues are medically complex, as a diagnosis and a competent opinion as to the etiology of such conditions require medical training and credentials. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran’s service treatment records (STRs), including the reports of his enlistment and separation examinations, do not reflect any in-service diagnoses of IHD, cardiomyopathy, or any other heart conditions. See STRs received February 2, 2015. The Veteran was afforded VA examinations for his claimed heart conditions in November 2010, November and December 2017, and February 2020. All four different VA examiners that performed those examinations all opined that the Veteran does not have a current heart disability. See Compensation and Pension (C & P) Exam Report dated November 8, 2010; Miscellaneous Disability Benefits Questionnaire (DBQ) dated November 2, 2017; BVA Medical Opinion DBQ dated December 5, 2017; Heart Conditions DBQ dated February 24, 2020; Medical Opinion DBQ dated February 24, 2020. The November 2010 VA examiner, however, provided no rationale for his opinion except to say that “Examination of the claims file and CPRS of the NFL/SGA medical system does not objectively document ischemic heart disease.” The examiner did not otherwise discuss whether the Veteran had any heart conditions, and so for clarity, and after review of the Veteran’s post-service treatment records, the Board remanded this issue for another VA examination opinion. See Board Decision dated September 28, 2017. The November 2017 VA examiner opined that “There is no current diagnosis of heart condition.” The examiner indicated that they reviewed the Computerized Patient Record System (CPRS) and the Veterans Benefits Management System (VBMS) and as a basis for the foregoing opinion, they cited VA treatment notes indicating normal echocardiogram results in February 2016 and a normal treadmill stress test in May 2011. The December 2017 VA examiner noted their review of “VBMS and Virtual VA e-Folders” and “CPRS/DoD Remote Medical record.” The examiner noted that the Veteran did not show for the examination, but the examiner also stated that after reviewing the complete record, another examination was not indicated in order to respond to the examination request (and provide the requested opinion). The examiner stated that the Veteran’s only heart condition diagnosis was a “REMOTE transient heart condition of ‘cardiomyopathy’, per Medical Treatment Record (MTR); RESOLVED without residuals” and that “ NO current or prior diagnosis of a chronic heart condition/disability [wa]s identified.” In the rationale for this opinion, this examiner noted that the Veteran’s treatment records document a remote transient mild cardiomyopathy, which was diagnosed in 1998 and resolved prior to an echocardiogram in June 2000. The examiner explained that the treatment records document “VIRAL CM,” and that viral infection is a known cause for cardiomyopathy (CM). However, the examiner noted that a 1999 cardiac catheterization showed normal coronary arteries, which, according to the examiner, means that the Veteran’s CM was not related to an IHD/CAD (coronary artery disease) condition. The examiner reasoned that multiple subsequent echocardiograms have documented normal left ventricular function and noted that a mention of mild mitral regurgitation in the February 2016 echocardiogram was an incidental finding without clinical significance (not a “heart condition” or disability). The examiner also stated that “Review of literature does not support a 50% likelihood of active duty service, to include herbicide agent exposure, as a cause for occurrence of a transient viral cardiomyopathy (CM) 28 years after service.” The examiner quite thoroughly discussed various findings in the Veteran’s treatment records, including notes indicating that the Veteran’s ejection fraction was found to have significantly improved, in June 1999, as compared to an echocardiogram done just two weeks before, consistent with an acute and transient condition, and another note dated in June 2000 indicating that the Veteran’s viral CM had resolved entirely. The examiner also cited to numerous VA and private treatment records indicating that the Veteran did not have any other heart problems or complications thereafter, and a 2016 pre-operative cardiology consultation note specifically stating that the Veteran did not have coronary artery disease. Finally, a February 2020 VA examiner also opined that the Veteran’s only heart condition that he has ever been diagnosed with was the resolved viral cardiomyopathy diagnosis, with a date of diagnosis in June 2000. This examiner also noted the previous finding of mild mitral regurgitation, but this examiner also stated this was merely an incidental finding. The examiner noted that the results of the February 2016 echocardiogram and a September 2019 EKG were both normal. The examiner opined that the Veteran’s resolved viral cardiomyopathy was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner’s rationale was that no current diagnosis is related to ischemic heart disease and that the Veteran’s cardiac disability (transient viral cardiomyopathy) is not related to his exposure to herbicides. This examiner once again cited the June 2000 normal echocardiogram as supporting evidence in the rationale. However, according to the February 2020 Heart Conditions DBQ, an interview-based METs test was performed on the day of that examination and it indicated that the Veteran’s METs level was “>5-7 METS,” and that it was due solely to the resolved viral cardiomyopathy. Thus, the February 2020 DBQ indicates that the Veteran may still have some disabling residuals of his resolved viral cardiomyopathy. The Veteran’s VA and private treatment records note the aforementioned test results (e.g., the above-mentioned normal echocardiograms) and findings (e.g., the viral cardiomyopathy). See, e.g., private treatment records received in March 1999; private treatment records received in May 1999; private treatment records received in December 2002; VA treatment records received in March 2016. They also document his complaints of chest pain and dyspnea. See id. A November 2011 note in the Veteran’s private treatment records indicates that the Veteran had a past history of a stroke, however, those records do not indicate how it was determined that the Veteran previously had a stroke; for example, those records do not indicate whether the inclusion of a stroke in the Veteran’s past medical history in those records was based on the Veteran’s reports of having had a stroke or on the results of any medical tests. Additionally, other medical treatment records indicate that the Veteran has not had a stroke. See VA treatment records received in October 2017; VA treatment records received in February 2020. The Veteran’s private treatment records do show that he was found, on a CT angiogram of his head and neck with IV contrast, to have mild atherosclerosis without flow-limiting stenosis or vessel occlusion of the major intracranial arteries. See private treatment records received in November 2019. However, there is no indication that he has been found to have atherosclerotic cardiovascular disease. After review and consideration of the evidence of record, including but not limited to that discussed above, the Board finds that the preponderance of the evidence weighs against finding that the Veteran has a current heart disability that was incurred during his active military service or as a result of his in-service exposure to herbicide agents. The Veteran’s STRs do not indicate that he was diagnosed with any heart conditions during his active service and there is no evidence that he incurred any such disability within a year thereafter. The above-mentioned VA examination opinions clearly collectively indicate that the Veteran does not have ischemic heart disease, and there is no indication to the contrary in the Veteran’s private or VA treatment records (including those contained within his records from the Social Security Administration (SSA)). Although the February 2020 DBQ indicates that the Veteran may still have some disabling residuals of his resolved viral cardiomyopathy, none of the other VA examination opinions indicate that the Veteran has any current heart-related disability (including any disabling effects of the resolved viral cardiomyopathy). Furthermore, the February 2020 VA Medical Opinion DBQ clearly indicates that the Veteran’s viral cardiomyopathy was not caused by an in-service injury, illness, or event, so regardless of whether he still experiences any disabling effects of the previous viral cardiomyopathy, he would still not be entitled to service connection therefor. All evidence considered, there is no competent evidence that the Veteran has a heart disability that was incurred during his active service, within one year of his discharge therefrom, or as a result of his exposure to Agent Orange during said service. Accordingly, the Board finds that the preponderance of the evidence weighs against this claim, and as such, this claim is hereby denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, claimed as secondary to service-connected posttraumatic stress disorder (PTSD), is remanded. The Veteran claims entitlement to service connection for hypertension because, according to him, it has persisted since his military service, was caused or has been aggravated by his service-connected PTSD, and/or was caused by his exposure to Agent Orange, an herbicide agent. See Appellant’s Brief dated August 9, 2017; VA Form 21-4138, Statement in Support of Claim received April 19, 2002; VA Form 21-4138, Statement in Support of Claim received March 18, 2010. The Veteran was afforded a VA examination in November 2017 to determine the nature and etiology of his hypertension, to include as secondary to service-connected PTSD and/or as due to exposure to herbicide agents. Regarding whether the Veteran’s hypertension is aggravated by his service-connected PTSD, the November 2017 VA examination opinion essentially states that there is no evidence in the literature that PTSD or any other mental disorder causes or permanently aggravates hypertension. The examiner provided a thorough rationale, however, the examiner employed the wrong standard in arriving at this opinion because aggravation, in this context, need not be permanent for secondary service connection to be granted. 38 C.F.R. § 3.310 (b); Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner stated that “[t]here is nothing objective in [the Veteran’s] medical record that would indicate that PTSD has chronically worsened or has permanently increased the blood pressure readings” or “affected or aggravated the veteran’s essential hypertension condition.” However, it is not clear from the November 2017 examination opinion whether the examiner considered the fact that permanent worsening is not required for a grant of service connection based on aggravation of a non-service-connected disability by a service-connected disability. When VA undertakes to provide an examination or opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds the VA medical opinion on aggravation of hypertension by service-connected PTSD is inadequate for decisional purposes, and remand is necessary prior to rendering a decision on the appeal. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s hypertension is at least as likely as not aggravated beyond its natural progression by service-connected disability. The electronic claims file must be made available to, and be reviewed by, the examiner. The examiner must note such review in the examination report. An in-person examination is not necessary unless the examiner determines otherwise. Upon review of the claims file, the examiner is requested to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that hypertension is aggravated by service-connected PTSD. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The term “aggravated” as used herein refers to an increase in the claimed disability; that is, a worsening of the disability beyond the natural clinical course and character of the condition. Aggravation of a disability need not be permanent. If the examiner finds that any of the Veteran’s hypertension is aggravated by his service-connected PTSD, the examiner must also provide an opinion as to the baseline level of severity of the Veteran’s hypertension prior to any such aggravation. (Continued on the next page)   The examiner must provide a complete explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. Zi-Heng Zhu Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, Associate 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.