Citation Nr: 21011319 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 19-36 479 DATE: March 1, 2021 ORDER Entitlement to service connection for ischemic heart disease is granted. REMANDED Entitlement to service connection for kidney stones is remanded. Entitlement to service connection for skin cancer, melanoma, to include as due to environmental exposures in Southwest Asia, and radiation exposure, is remanded. Entitlement to service connection for obstructive sleep apnea, to include as due to environmental exposures in Southwest Asia, is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor the Board finds a current diagnosis of ischemic heart disease, including ongoing treatment and medication management for coronary artery disease, atrial fibrillation and atherosclerotic cardiovascular disease. 2. The Veteran served in the Republic of Vietnam from April 1969 to March 1970 and is presumed to have been exposed to designated herbicide agents. 2. The Veteran’s ischemic heart disease is presumed to have been caused by exposure to herbicides. CONCLUSION OF LAW 1. The criteria for service connection for ischemic heart disease have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1968 to March 1970 and from November 1973 to December 2001 retiring as a Major General with service in the Republic of Vietnam and service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a Board virtual hearing in January 2021. A transcript of the hearing has been associated with the claims file. Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service” - the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303 (b), 3.309. As to herbicide exposure, Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The Veteran served in the Republic of Vietnam from April 1969 to March 1970. Thus, exposure to herbicides is presumed. If a veteran was exposed to a herbicide agent (to include Agent Orange) during active military, naval or air service and has contracted an enumerated disease to a degree of 10 percent or more at any time after service (except for chloracne and early-onset peripheral neuropathy which must be manifested within a year of the last exposure to an herbicide agent during service), the veteran is entitled to a presumption of service connection even though there is no record of such disease during service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(e). The enumerated diseases are AL amyloidosis; chloracne or other acneform diseases; diabetes mellitus, type 2, Hodgkin’s disease, all chronic B-cell leukemias, multiple myeloma, non-Hodgkin’s lymphoma, early-onset peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma), Parkinson’s disease, and ischemic heart disease. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307 (a)(6)(iii), 3.309(e), 3.313, 3.318. VA has determined 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, 68 Fed. Reg. 27630 -7641 (2003). Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Entitlement to service connection for ischemic heart disease The Veteran contends that service connection is warranted for ischemic heart disease and that he first began experiencing ongoing heart symptomology in-service which has continued since that time. In addition, the Veteran contends that his current ischemic heart disease is related to his in-service exposure to herbicides. In January 2021 the Veteran testified to ongoing treatment, medication management and care for his ischemic heart disease. The Veteran is competent to describe his ongoing symptoms, in-service duties and his statements are credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a current diagnosis of ischemic heart disease that began during active service or is at least as likely as not caused by an in-service injury or disease, including exposure to herbicides. The Board notes that there is conflicting evidence of record regarding whether the Veteran has a current diagnosis of ischemic heart disease. However, resolving reasonable doubt in the Veteran’s favor the Board concludes the Veteran has a current diagnosis of ischemic heart disease. Department of Defense (DoD) treatment records have been associated with the claims file noting the Veteran continues to undergo treatment, care and medication management for coronary artery disease, atrial fibrillation and atherosclerotic cardiovascular disease. A VA heart conditions examination in April 2017 noted that the Veteran had not been diagnosed with any heart condition. The Veteran reported shortness of breath when running upstairs. The examiner noted no pertinent physical findings, complications, conditions, signs and/or symptoms. The examiner noted no objective evidence to support a diagnosis of ischemic heart disease was warranted. Then, the Veteran submitted a heart conditions Disability Benefits Questionnaire (DBQ) in June 2019. The Veteran’s treating physician noted atrial fibrillation and atherosclerotic cardiovascular disease. The Veteran’s treating physician noted that he experienced sporadic chest pain while still on active duty and that he currently has coronary artery disease and atrial fibrillation. Ongoing medication management was noted. An EKG in March 2019 noted arrhythmia and atrial fibrillation. A chest X-ray from December 2015 was noted to be abnormal with no acute process and calcified nodules comparable with previous testing. Department of Defense (DoD) treatment records note ongoing treatment and medication management for coronary artery disease. As such the Board finds resolving reasonable doubt in the Veteran’s favor, he has a current diagnosis of ischemic heart disease. As noted above, the Veteran served in the Republic of Vietnam during the applicable time period and exposure to herbicides is presumed. As the Board has found that the Veteran has a current diagnosis of ischemic heart disease service connection is warranted on a presumptive basis. As such service connection on a presumptive basis is granted for ischemic heart disease. 38 C.F.R. § 3.307. REASONS FOR REMAND 1. Entitlement to service connection for kidney stones 2. Entitlement to service connection for skin cancer, melanoma, to include as due environmental exposures in Southwest Asia, and radiation exposure 3. Entitlement to service connection for obstructive sleep apnea, to include as due to environmental exposures in Southwest Asia The Veteran contends that service connection is warranted for kidney stones, for melanoma and for obstructive sleep apnea. The Board finds that a remand is warranted for additional development. First, relevant to the remanded claims, in January 2021 the Veteran testified before the undersigned Veterans’ Law Judge to receiving ongoing treatment for kidney stones, soon after his separation from service, and ongoing treatment since service. Further, the Veteran also reported ongoing treatment for skin cancer, melanoma and obstructive sleep apnea. The Veteran testified to ongoing Department of Defense (DoD) treatment as a retiree since his retirement in 2001, at Fort Belvoir Community Hospital, DiLorenzo TRICARE Health Clinic, and Walter Reed National Military Medical Center. It appears the entirety of these DoD treatment records has not been associated with the claims file. A remand is required to allow VA to request these outstanding DoD treatment records. Kidney stones In an August 2001 retirement physical examination, the Veteran denied any history of kidney stones and the examiner noted no genito-urinary system abnormalities. In January 2021, the Veteran testified to treatment for kidney stones and associated symptomology in 2002 or 2003, with ongoing recurrence. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for kidney stones because no VA examiner has opined as to direct and presumptive service connection. As such a remand is warranted for a VA examination. Skin cancer The Veteran contends that service connection is warranted for skin cancer, melanoma to include as due to environmental exposures, including radiation, in Southwest Asia. The Veteran testified to potential radiation exposure to depleted uranium armor and rounds during an April 1991 investigation of a friendly fire incident, and that during this incident a Geiger counter in use indicated a high reading. The Veteran has submitted a memo from April 1991 detailing this fact finding investigation. The record does not contain sufficient evidence regarding the Veteran’s asserted radiation exposure. Medical records show the Veteran has been diagnosed with skin cancer, melanoma, which is a radiogenic disease under 38 C.F.R. § 3.311(b)(2). Accordingly, VA should develop the Veteran’s claim as directed under 38 C.F.R. § 3.311. As such a remand is warranted for additional development. Also, the Board cannot make a fully-informed decision on the issue of service connection for melanoma, to include as due radiation exposure and environmental exposures in Southwest Asia, because no VA examiner has fully opined as to direct service connection, including service in Southwest Asia. An April 2017 VA examination has been associated with the claims file noting left ear melanoma diagnosed in 2008. However, the examination failed to address direct service, the Veteran’s lay contentions and to fully address his Gulf War exposures, herbicide exposure and radiation exposure. As such a remand is warranted for a supplemental VA opinion. Obstructive sleep apnea Next, the Veteran contends that service connection is warranted for obstructive sleep apnea, to include because of an onset of snoring in service and as due to environmental exposures in Southwest Asia. In an August 2001 retirement physical examination, the Veteran denied having a history of frequent trouble sleeping or easy fatigability. Board cannot make a fully-informed decision on the issue of service connection for obstructive sleep apnea because no VA examiner has fully opined as to direct service connection, including service in Southwest Asia. An April 2017 VA examination has been associated with the claims file noting obstructive sleep apnea. The examination failed to provide an opinion fully addressing direct service connection, the Veteran’s and associated lay contentions and to fully address Gulf War exposures. As such a remand is warranted for a supplemental VA opinion. The matters are REMANDED for the following action: 1. Obtain the Veteran’s federal records from the Department of Defense (DoD) for ongoing treatment from December 2001 forward. The Veteran testified to ongoing DoD treatment as a retiree since his retirement in 2001, at Fort Belvoir Community Hospital, DiLorenzo TRICARE Health Clinic, and Walter Reed National Military Medical Center. Document all requests for information as well as all responses in the claims file. 2. Develop the Veteran’s assertion that he was exposed to radiation from duties associated with investigating a friendly fire incident in Southwest Asia in April 1991, and the depleted uranium contamination of a vehicle. If evidence of possible exposure to radiation or ionizing radiation is found, obtain a dose assessment and an opinion in accordance with the procedures in 38 C.F.R. § 3.311. If more details are needed, contact the Veteran to request the information. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any kidney stone disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: (a.) Identify any current kidney stone disability. (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current kidney stone disability is caused by an in-service injury or disease, to include as due to herbicide exposure in Vietnam and/or environmental exposures in Southwest Asia? (c.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s kidney stone disability (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The Veteran served in the Republic of Vietnam during the applicable time period and exposure to herbicides is presumed. In addition, the Veteran served in Southwest Asia and exposure to environmental hazards is presumed. In January 2021 the Veteran testified to ongoing episodes of kidney stones that began soon after service in 2002/2003 and have reoccurred every few years. 4. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s skin cancer, melanoma and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s melanoma is caused by an in-service injury or disease, to include as due to herbicide exposure and/or environmental exposures in Southwest Asia, including radiation exposure? (b.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s melanoma (1) began during active service, (2) manifested within the applicable presumptive period after discharge from service, or (3) was noted during service with continuity of the same symptomology since service? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. The Veteran served in the Republic of Vietnam during the applicable time period and exposure to herbicides is presumed. In addition, the Veteran served in Southwest Asia during the applicable time period and exposure to environmental hazardous is presumed. Attention is invited to the Veteran’s lay statements and testimony in January 2021 noting that his melanoma is related to environmental exposures while serving in Southwest Asia, including oil fires, destruction of ammunition dumps, smoke and the burning of nerve agents. Further, the Veteran testified to potential exposure to depleted uranium armor and rounds during investigation of a friendly fire incident, and a Geiger counter in use indicated a high reading. The Veteran has submitted a memo from April 1991 detailing his participation in this investigation. 5. Obtain an addendum opinion from an appropriate clinical regarding the Veteran’s obstructive sleep apnea and whether: (a.) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current obstructive sleep apnea is caused by an in-service, injury, event or disease, to include service and environmental exposures in Southwest Asia? Review of the entire claims file is required. The examiner must provide a complete rationale for all findings and opinions, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. (continued next page) Attention is invited to the Veteran’s and associated lay statements from fellow service members noting symptoms of snoring, difficulty breathing and coughing which began while serving in Southwest Asia. Further, attention is invited to the Veteran’s and his wife’s January 2021 testimony noting his snoring and difficulty breathing began after his exposure to environmental contaminates while serving in Southwest Asia, and that his wife reported these symptoms soon after his deployment, which have worsened over time. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.