Citation Nr: 21015181 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-50 699 DATE: March 16, 2021 ORDER Service connection for a heart disorder, to include coronary artery disease (CAD), as due to herbicide exposure, is granted. Service connection for diabetes mellitus, type II, as due to herbicide exposure, is granted. REMANDED Service connection for hypertension, as due to herbicide exposure, is remanded. Service connection for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran is currently diagnosed with CAD and diabetes mellitus, type II. 2. During service the Veteran served in the Republic of Vietnam and is presumed to have been exposed to the herbicide Agent Orange. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the appellant, the criteria for presumptive service connection for the heart disorder of CAD, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a). 2. Resolving reasonable doubt in favor of the appellant, the criteria for presumptive service connection for diabetes mellitus, type II, as due to herbicide exposure, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1116A, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.313, 3.326(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1961 to September 1964. The Veteran died in November 2016. The appellant is the surviving spouse of the Veteran, who is substituted as the appellant for purposes of adjudicating the issue on appeal to completion. See 38 U.S.C. § 5121A (allowing for substitution in case of death of a claimant who dies on or after October 10, 2008). This matter came before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The appellant testified at a February 2021 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decision grants service connection for the heart disorder of CAD and diabetes mellitus, type II, for accrued benefits purposes, and remands the remaining issues on appeal, no further discussion of VA’s duties to notify and assist is necessary. 1. Service Connection for a Heart Disorder 2. Service Connection for Diabetes Melitis, Type II Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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. As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. 38 C.F.R. § 3.303(a),(d). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even though there is no record of such disease during service, if they manifest to a compensable degree any time after service, in a veteran who had active military, naval, or air 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, including the waters offshore, and other locations if the conditions of service involved duty or visitation in Vietnam. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309(c), 3.313. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. “Service” in the Republic of Vietnam includes (but is not limited to) duty on aircraft carriers and other ships operating temporarily within the 12 nautical miles of territorial seas of the Republic of Vietnam. 38 U.S.C. § 1116A; Procopio, 913 F.3d 1371. Type II diabetes mellitus and ischemic heart disease, to include CAD, are on the list of herbicide presumptive diseases. 38 C.F.R. § 3.309(c). Notwithstanding the foregoing presumption provisions for herbicide exposure, a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); see also Ramey v. Gober, 120 F.3d 1239, 1247-48 (Fed. Cir. 1997), aff’g Ramey v. Brown, 9 Vet. App. 40 (1996); Brock v. Brown, 10 Vet. App. 155, 160-61 (1997). The appellant seeks service connection for a heart disorder, to include CAD, and diabetes mellitus, type II, on the basis of in-service herbicide exposure. During the course of this appeal the appellant has argued that, during service, the Veteran had some service in the Republic of Vietnam. Initially, the Board finds that, prior to death, the Veteran was diagnosed with the heart disorder of CAD and diabetes mellitus, type II. Both diagnoses can be found within the Veteran’s VA treatment records. Further, a diagnosis of CAD can also be found within the report of a February 2016 private ischemic heart disease disability benefits questionnaire. Next, the Board finds the evidence at least in equipoise on the question of whether the Veteran served in the Republic of Vietnam during service. Review of the service personnel and service treatment records do not specifically reflect that the Veteran had active service in the Republic of Vietnam; however, the service personnel records do reflect that the Veteran served with the 91st Evacuation Hospital (SMBL) in 1964. During the course of this appeal the appellant’s representative submitted an article from the United States Army Medical Department: Office of Medical History entitled U.S. Medicine in Vietnam: The Early Years. Per the article, during the Vietnam War the 91st Medical Detachment provided medical support in Vung Tau in the Republic of Vietnam. It is the representative’s argument that the Veteran had temporary duty in the Republic of Vietnam as part of the 91st Medical Detachment during service. The above argument is supported by the credible testimony of the appellant and the Veteran’s daughter at the February 2021 virtual Board hearing. The appellant credibly testified that the Veteran told her stories concerning active service in the Republic of Vietnam. Both the appellant and the Veteran’s daughter credibly testified to hearing the Veteran discuss in-service experiences in Vietnam with other former servicemembers. During the course of this appeal, VA received two photographs that included handwritten notes from the Veteran. The first photograph was a picture of the Veteran with the caption “me in Vietnam,” while the second photograph was of a street with the caption “street in Vietnam.” In sum, the Board finds the United States Army Medical Department article, the testimony from the appellant and Veteran’s daughter, and the submitted photographs sufficient to place in equipoise the question of whether the Veteran served on temporary duty in the Republic of Vietnam during service. Prior to death, the Veteran was diagnosed with the heart disorder of CAD and diabetes melitis, type II, which are presumptively associated with herbicide exposure. For the reasons discussed above, the Board has found that during service the Veteran had temporary duty in the Republic of Vietnam. Resolving reasonable doubt in the appellant’s favor, such evidence warrants the grant of service connection for both CAD and diabetes mellitus, type II, on a presumptive basis. 38 U.S.C. §§ 1116, 1116A; 38 C.F.R. §§ 3.307, 3.309; Procopio, 913 F.3d 1371. As service connection is being granted on a presumptive basis, there is no need to discuss entitlement to service connection on a direct or any other basis, as other theories of service connection have been rendered moot, leaving no question of law or fact to decide. See 38 U.S.C. § 7104. The evidence of record indicates that, prior to death, the Veteran may have been diagnosed with other heart disorders. Where a veteran is diagnosed with multiple heart disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the now service connected CAD from any other heart disorders. As such, the Board has attributed all disability symptomatology and functional impairment to the now service connected CAD, and the RO should consider all the heart symptomatology and functional impairment when assigning an initial disability rating. For these reasons, the Board need not consider whether service connection is also warranted for any other heart disorders. REASONS FOR REMAND 3. Service Connection for Hypertension VA’s duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. Floyd v. Brown, 9 Vet. App. 88, 93 (1996). VA must afford a veteran a medical examination and/or obtain a medical opinion when it is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). While hypertension is not a disease subject to presumptive service connection due to herbicide exposure, 38 C.F.R. § 3.309(c), a claimant is not precluded from establishing service connection with proof of direct causation. See Combee, 34 F.3d at 1042. In its 2012 report “Veterans and Agent Orange: Update 2012,” the Committee to Review the Health Effects in Vietnam Veterans of Exposure to Herbicides categorized hypertension as having limited or suggestive evidence of association with herbicide exposure. The report indicated that epidemiologic evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion was limited because chance, bias, and confounding could not be ruled out with confidence. More recently, a study by the National Academy of Science (NAS) provided a conclusion that there is evidence of an association between at least one of the chemicals of interest in herbicides and hypertension. See Veterans and Agent Orange: Update 2018 (11th Biennial Update), Institute of Medicine, The National Academies Press (2018). In the instant decision the Board has found that the Veteran served in the Republic of Vietnam and is presumed to have been exposed to the herbicide Agent Orange during service. As such, the Board finds remand to obtain a medical opinion on the question of whether the Veteran’s presumed exposure to the herbicide Agent Orange resulted in the Veteran’s hypertension to be warranted. 4. Service Connection for Bilateral Hearing Loss VA should obtain all relevant VA and private clinical documentation that could potentially be helpful in resolving the issues. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). At the February 2021 virtual Board hearing, the appellant testified that, prior to death, the Veteran was prescribed hearing aids through a private physician. The appellant was asked to submit copies of these private treatment records; however, to date, VA has not received the Veteran’s private audiology treatment records. As the outstanding private audiometric treatment records may be relevant to the question of service connection for bilateral hearing loss, the Board finds remand to obtain these outstanding private treatment records to be warranted. The aforementioned matters are REMANDED for the following action: 1. Contact the appellant and request information as to the Veteran’s outstanding private audiological/bilateral hearing loss treatment (medical) records. Upon receipt of the requested information and the appropriate releases, the Agency of Original Jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the bilateral hearing loss, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the appellant should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Obtain a medical opinion from a cardiologist or other appropriate hypertension examiner. The relevant facts and medical history should be made available to the examiner. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. The examiner should provide the following opinion: Is it at least as likely as not (50 percent or higher degree of probability) that presumed in-service exposure to herbicides (Agent Orange) caused the Veteran’s hypertension? Such opinion should be based upon the specific facts and circumstances of this case. In rendering this opinion, the examiner is specifically asked to address the NAS study that rendered a conclusion that there is sufficient evidence of an association between at least one of the chemicals of interest in herbicides and hypertension. See Veterans and Agent Orange: Update 2018 (11th Biennial Update), Institute of Medicine, The National Academies Press (2018), available at http://www.nationalacademies.org/hmd/Reports/2018/veterans-and-agent-orange-update-2018.aspx. (Continued on the next page)   If the examiner opines that it is less likely than not that the hypertension was due to in-service herbicide exposure, then, to the extent possible, the examiner should provide other individual causative factors that may have led to the development of hypertension by the Veteran. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.