Citation Nr: 21013960 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-34 222 DATE: March 11, 2021 ORDER Service connection for ischemic heart disease is denied. Service connection for chronic obstructive pulmonary disease (COPD) is denied. REMANDED The claim for service connection for hardened arteries is remanded. FINDINGS OF FACT 1. The evidence does not show that the Veteran has a diagnosis of ischemic heart disease. 2. The evidence does not show that the Veteran’s COPD occurred during or was otherwise caused by his active service, to include his presumed exposure to herbicide agents during service. CONCLUSIONS OF LAW 1. The criteria for service connection for ischemic heart disease have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1965 to May 1995. He had service in the Republic of Vietnam during the Vietnam era. As such, his exposure to herbicide agents during service is conceded. An April 2019 Board decision remanded the issues for further development, to include conducting VA examinations and obtaining VA medical opinions on the etiologies of the Veteran’s claimed disabilities. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection can be established based on herbicide exposure. 38 C.F.R. § 3.307(a)(6). A veteran who had active service for at least 90 days, during the period beginning on January 9, 1962 and ending on May 7, 1975, in the Republic of Vietnam is presumed to have been exposed to herbicides and the veteran is entitled to a presumption of service connection for certain diseases listed under 38 C.F.R. § 3.309(e). Ischemic heart disease is a diseased listed under 38 C.F.R.§ 3.309(e) while COPD is not, which means the presumed service connection will not apply to COPD. Heart The Veteran is seeking service connection for ischemic heart disease (previously claimed as heart catheterization), which he believes was related to his service, to include exposure to herbicide agents during service. At his VA examination on heart condition in January 2020, the Veteran rereported that he did not recall ever being diagnosed with a heart condition, but he had prior heart catheterizations, and that he took Plavix and ASA for peripheral vascular disease (PVD), but not specifically for a heart condition. Chest x-rays in January 2020 show tortuous atherosclerotic aorta, but an EKG in January 2020 showed normal results. An echocardiogram in January 2019 also showed normal results. After reviewing the claim’s file and testing results and physically examining the Veteran, the examiner concluded that there were no findings, signs and or symptoms to support a diagnosis of ischemic heart disease. The examiner explained that the medical records had been reviewed in their entirety, and there were no findings of any documentation of ischemic heart disease, coronary arteriosclerosis, or any other cardiac condition, which was consistent with the Veteran’s own report that he had not been diagnosed with any cardiac condition and was not receiving any treatment for one. Service treatment records (STRs) showed that the Veteran had a cardiac catheterization in February 1985, which showed normal hemodynamics, ventricular wall motion, and angiographic coronary artery anatomy. His retirement physical in August 1994 showed normal lungs, chest, and vascular system. In the report of medical history in conjunction with the retirement physical, the Veteran reported shortness of breath and heart trouble, the medical officer indicated that the Veteran’s symptoms of shortness of breath, chest pain, palpitating ponding heart started in 1985, and were treated with blood pressure medications. Private medical records do not show that the Veteran had been diagnosed with ischemic heart disease. For example, records from the McLeod Regional Medical Center in May 2010 showed that the Veteran denied history of transient ischemic attack, and that he had a cardiac catherization in 2006 for atypical chest pain, which showed normal coronary arteries at that time. An echocardiogram in May 2012 showed ejection fraction of 60 percent, and normal systolic pressure of the right ventricle. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the evidence does not show that the Veteran has a current disability of ischemic heart disease, service connection for this condition is denied. COPD The Veteran is seeking service connection for COPD, which he believes was related to his service, to include exposure to herbicide agents during service. As discussed above, COPD is not a disease listed under the 38 C.F.R.§ 3.309(e), as such, presumptive service connection is not available to this claim, meaning that the Veteran must proffer direct evidence of how his COPD was the result of his military service, to include as a result of his presumed herbicide exposure therein. VA examination in January 2020 diagnosed the Veteran with COPD, but the examiner opined that this condition was less likely than not (less than 50 percent probability) incurred in or caused by the service, to include presumed herbicide exposure during service. The examiner offered the following rationale: Evaluation of the Veteran this date confirms [that he] has claimed condition of chronic obstructive pulmonary disease. There were no findings in available records which would link his COPD to any military event or exposure while in theater in Vietnam, and COPD is not a presumptive diagnosis for Vietnam veterans. In addition, per Veteran’s own report and consistent with findings in available records, Veteran does have an extensive smoking history, admitting to approximately one pack per day from 1965 until the time he quit smoking in 1989. Chronic obstructive pulmonary disease is a well-known complication of cigarettes smoking, and this is the most likely etiology for his respiratory condition. STRs did not show any treatment or diagnosis of COPD. The Veteran’s retirement physical in August 1994 showed normal lungs and chest condition. While he reported shortness of breath in his report of medical history in conjunction with the retirement physical, the medical officer indicated that this symptom had been treated with blood pressure medications, implying that the symptom was related to the Veteran’s hypertension. Private treatment records showed that the Veteran was hospitalized for COPD in June 2012. Records do not show that he was diagnosed or treated for COPD prior to 2012, which is approximately seventeen years after he separated from the service. While the Veteran believes his COPD may be related to his active service, to include as a result of his presumed exposure to herbicide agents therein, he lacks the medical training and/or expertise to provide a complex medical opinion as to the etiology of such a disability. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, his opinion is insufficient to provide the requisite nexus in this case. For that reason, a VA medical opinion of record was obtained, but as discussed above, that opinion was against the claim. This opinion has not been challenged or contradicted by other medical opinion. Accordingly, service connection for COPD is denied. REASONS FOR REMAND Hardened Arteries VA examination on heart condition in January 2020 did not diagnosed the Veteran with coronary arteriosclerosis (hardening of the arteries). The examiner concluded that there were no findings, signs and or symptoms to support such diagnosis. However, review of private records shows there were findings which may support a diagnosis of non-coronary arteriosclerosis (hardening of the arteries). For example, records from McLeod Regional Medical Center contained a Consultation Report for left extremity pain dated May 25, 2010 showing an assessment that the Veteran’s feet pain and severe claudication of the calf may be secondary to his diabetic obliterative atherosclerosis. The Consultation Report diagnosed the Veteran with peripheral vascular disease with risk factors of hypertension and diabetes. McLeod Regional Medical Center radiology report dated May 19, 2011 showed atherosclerotic disease in the right knee area. McLeod Regional Medical Center records dated June 18, 2013 revealed small vessel arteriosclerosis. (Contained in two 141-page documents dated 2/4/2014 entitled “Medical Treatment Record - Non-Government Facility”.) The Veteran simply filed for service connection for “hardened arteries” but did not provide significant clarification as to the disability for which he was seeking service connection. As such, further development is warranted to assess the diagnosis of the Veteran’s non-coronary arteriosclerosis (hardening of the arteries) and etiology thereof. Therefore, the matter is REMANDED for the following actions: 1. With the Veteran’s help, obtain relevant private treatment records from February 2014 to the present. 2. Obtain a medical opinion to assess the Veteran’s claim for “hardened arteries”. If a physical examination is required to answer the Board’s question, one should be scheduled. The examiner should answer the following questions: (a) Does the Veteran have a current disability involving “hardened arteries” such as peripheral vascular disease? In doing so, the examiner should address the McLeod Regional Medical Center records showing that the Veteran had arteriosclerosis in his lower extremities. (Contained in two 141-page documents dated 2/4/2014 entitled “Medical Treatment Record - Non-Government Facility”.) (b) If the answer to (a) is yes, is it at least as likely as not (50 percent or greater) that the condition began in or was otherwise caused by the Veteran’s approximately 30 years of active military service, to include presumed exposure to herbicide agents during service? Why or why not? (c) If the answer to (a) is yes, is it at least as likely as not (50 percent or greater) that the Veteran’s condition (claimed as hardened arteries) was caused by his service connected type II diabetes and/or hypertension? Why or why not? In doing so, the examiner should address the McLeod Regional Medical Center records indicating that the risk factors of the Veteran’s arteriosclerosis were hypertension and diabetes. (Contained in two 141-page documents dated 2/4/2014 entitled “Medical Treatment Record - Non-Government Facility”.) (d) If the answer to (a) is yes, is it at least as likely as not (50 percent or greater) that the Veteran’s condition (claimed as hardened arteries) was aggravated (made worse) by his service connected type II diabetes and/or hypertension? Why or why not? MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.