Citation Nr: 21014740 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-37 916 DATE: March 15, 2021 ORDER Entitlement to service connection for ischemic heart disease (IHD) due to presumed exposure to herbicide agents is denied. FINDINGS OF FACT 1. The weight of the evidence of record is against a finding that there is a current diagnosis of IHD. 2. The weight of the evidence of record is against a finding that a heart disorder, to include atrial fibrillation, had its onset in active service or is it otherwise related to active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disorder, to include IHD, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1116, 5107(a); 38 C.F.R. §§ 3.303, 3.307(a)(3), (6), 3.309(a), (e). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran’s active service from July 1965 to June 1967, including a tour in the Republic of Vietnam (RVN) from June 1966 to June 1967. Initially, in a March 2019 decision (03/26/2019 BVA Decision), the Board denied the appeal, which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). While that appeal was pending, in February 2020, the Veteran, through counsel, and the Secretary, VA, entered into a Joint Motion for Remand (JMR) wherein the parties petitioned the Court to vacate the Board decision and remand it to the Board for further appellate review. Per a March 2020 Order, the Court granted the JMR, vacated the February 2019 decision, and remanded the case to the Board. See 03/06/2020 CAVC Decision, P. 2, 7. In compliance with the Court remand, the Board has twice remanded the case for additional development, most recently in February 2021. See 02/01/2021 BVA Decision. As discussed further in the decision below, the Board finds substantial compliance with the Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for IHD due to presumed exposure to herbicide agents is denied. Applicable Legal Requirements Generally, to establish service connection, a veteran must show: (1) a present disability; (2) an 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); 38 C.F.R. § 3.303. 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). Heart disorders are presumed to have been incurred in service if manifested to a compensable degree within one year of separation from service. This presumption applies to veterans who have served 90 days or more of active service during a war period or after December 31, 1946. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza elements in a claim involving a listed chronic disease is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a chronic disease was “noted” during service or within the applicable presumptive period; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. In certain cases, service connection can be presumed if a Veteran was exposed to an herbicide agent during active service. IHD is among the disorders for which presumptive service connection is warranted for exposure to herbicide agents. Hence, presumptive service connection for IHD as a result of exposure to herbicide agents is warranted if the requirements of 38 C.F.R. § 3.307(a)(6) are met. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). The governing law provides that a “Veteran who, during active military, naval, or air service, served in RVN 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). Discussion In the March 2019 decision the Board determined that there was no evidence that the Veteran had a diagnosis of IHD, and that there was no evidence of a causal connection between his currently diagnosed heart disorder, including atrial fibrillation, and his active service. The sole basis on which the parties concurred in the JMR was that VA failed to assist the Veteran in that referenced non-VA treatment records were not obtained. Specifically, the JMR notes a number of instances where external scanned documents are referenced, but the contents are not actually reflected in the Veteran’s VA outpatient records. (Emphasis added) See 07/03/2017 CAPRI, P. 69, 74, 82, 84, and 87; 07/03/2017 CAPRI, P. 26, dated March 28, 2016, and noted on P. 68, dated 09/01/2013. The entries reference the Veteran’s visits with his non-VA physician but do not include the details of the visit. Thus, as noted earlier, the Court vacated the 2019 Board decision. In compliance with the Board remand, the AOJ obtained the entries and added them to the digital claims file. See 11/20/2020 Medical Treatment-Government Facility, 1st, 2nd, and 3rd Entries; 11/23/2020 CAPRI, 1st through 6th Entries; 02/04/2021 VMAC Other Output, 1st and 2nd Entries. Thus, the Board finds that the Duty-to-Assist error noted in the JMR has been cured. The contents do not change the evidentiary posture of the case. The Board again sets forth the evidence. At the October 2014 VA examination the Veteran reported that his heart disorder first manifested in 2010-2011, when an EKG was read as abnormal. See 10/01/2014 C&P Examination, 1st Entry, P. 3. A DBQ completed by his Non-VA physician notes a diagnosis of atrial fibrillation in April 2013, and that a pacemaker was implanted. See 06/16/2014 VA-21-0960A, IHD DBQ. Indeed, the Veteran testified at the Board hearing that his disorder was diagnosed approximately 5 to 6 years before the hearing. See 09/11/2018 Hearing Transcript, P. 6. Hence, the evidence of record compellingly shows that there is no factual basis for presumptive service connection for a chronic disease, as the diagnosed heart disorder did not manifest at least to a compensable degree within one year of separation from active service. The Board finds further that the preponderance of the evidence is also against a finding of service connection on a direct basis, as the Veteran’s currently diagnosed heart disorder, to include atrial fibrillation, status post-pacemaker implant, had onset decades after his active service, and there is no assertion or evidence of a causal connection with active service. 38 C.F.R. §§ 3.303, 3.307(a)(3), 3.309(a). Moreover, the Veteran does not assert otherwise. As noted earlier, the Veteran served a tour in RVN. Hence, he is presumed to have been exposed to herbicide agents during the tour. See 38 C.F.R. § 3.307(a)(6). If he in fact has IHD, it is presumed to be due to his presumed exposure, see 38 C.F.R. § 3.309(e), and this is the primary basis on which he relies to support his claim. The preponderance of the evidence of record, however, does not show a diagnosis of IHD/coronary artery disease (CAD). Rather, the Veteran has been diagnosed with atrial fibrillation, status post-pacemaker implant. See 10/01/2014 C&P Examination, 1st Entry, P. 1; see also 07/03/2017 CAPRI. The AOJ Informal Conference Report and the Veteran’s hearing testimony reflects his concession that he does not have a diagnosis of IHD or CAD. See 03/28/2017 Hearing Testimony; 09/11/2018 Hearing Transcript, P. 7. The Veteran, however, has repeatedly asserted that he does not understand why he is not deemed to have the diagnosis when his non-VA physician noted on a DBQ that his pacemaker was implanted due to IHD. See 06/16/2014 VA-21-0960A, IHD DBQ, Section II, Block 2C, where the physician checked a block that noted it was as likely as not that the pacemaker was implanted due to IHD. The Veteran emphatically asserts that it just is not clear why his doctor’s opinion has been ignored. As the Board noted in the March 2019 decision, the Veteran’s position and concerns are acknowledged. Nonetheless, at the Board hearing the undersigned explained to the Veteran that a clearer opinion from his physician was needed, and the undersigned held the record open for any clarification that could be obtained from his physician. No additional evidence was received from the physician or elsewhere concerning a diagnosis of IHD. Further, as noted in 2019, all medical opinions must be explained and supported by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Second, the Board notes that the Veteran’s physician in a June 2017 DBQ specifically indicated in Block 1A that the Veteran did not have IHD, and he did not in fact include IHD in the list of diagnoses he entered in Blocks 1B-D. Third, and finally, the Veteran’s physician checked the block in Section IV, Block 4, that indicated that a diagnostic stress test had not been conducted. Hence, the Board finds that the information the Veteran’s physician entered on the DBQ, overall, does not constitute evidence of IHD that is entitled to even de minimus weight. In fact, there is a significant basis on which to infer that the Veteran’s physician simply made a mistaken entry. In sum, the records added do not contain any evidence of a diagnosis of IHD, or of a causal connection between the Veteran’s atrial fibrillation and his active service. Hence, while the appeal and subsequent remand have caused additional records to be added to the claims file, those records have not changed the substantive posture of the case in any way. Based on the foregoing, the Board again finds that the preponderance of the evidence is against finding a current diagnosis of IHD/CAD. Hence, there is no factual basis for presumptive service connection due to presumed exposure to herbicide agents. 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e). Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 3.102. Thus, the appeal is denied on all bases. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.