Citation Nr: 21021433 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 12-23 419 DATE: April 13, 2021 ORDER Entitlement to service connection for a heart disability, to include atrial fibrillation, left bundle branch block (LBBB), and mild cardiomyopathy, is denied. FINDINGS OF FACT 1. The weight of the competent, persuasive evidence establishes that the Veteran does not currently have, and at no point pertinent to this appeal has had, ischemic heart disease. 2. It is less likely than not that the Veteran’s heart conditions, to include atrial fibrillation, LBBB, and mild cardiomyopathy, either began during or were otherwise caused by his active military service, to include exposure to herbicides while serving in the Republic of Vietnam. CONCLUSION OF LAW The criteria for service connection for a heart disability, to include atrial fibrillation, LBBB, and mild cardiomyopathy, have not been met. 38 U.S.C. §§ 1110, 1113, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1964 to October 1968, to include service in the Republic of Vietnam from September 1965 to October 1966 and February 1968 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on remand from an August 2020 Board decision. It was originally before the Board in June 2016 on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA), at which time the Board remanded for additional development. In April 2017, the Board denied service connection for ischemic heart disease. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In a December 2017 Joint Motion for Partial Remand (JMPR), the Court vacated part of the April 2017 Board decision and returned the matter to the Board for further consideration consistent with the JMPR. The Board remanded the case in April 2018 for further development. After the appeal returned to the Board in August 2020, the Board remanded this matter to obtain outstanding records pertinent to the Veteran’s appeal and to obtain an addendum medical opinion to assess the diagnosis and etiology of the Veteran’s heart disability. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order). See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff’d, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board’s remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim herein decided. Therefore, there is no prejudice to the Veteran in the Board proceeding to a decision on these matters, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. The file has been returned to the Board and the matter is now properly before the Board for adjudication. In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 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; 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established with certain chronic diseases, based upon a legal presumption, which occurs by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection may be established under 38 C.F.R. § 3.303 (b), when a symptom or symptoms of a chronic disease are noted in service, or within a year of the date of separation from service, and when chronicity is established through a continuity of symptomatology after service. The continuity of symptomatology provision is an alternative method to establishing service connection for the specific chronic diseases listed under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). As well, service connection may be granted on a presumptive basis for certain diseases resulting from exposure to an herbicide agent (including Agent Orange) for Veterans who, during active military, naval, or air service, served in the Republic of Vietnam between January 1962 and May 1975, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307 (a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307 (d) are also satisfied. 38 C.F.R. § 3.309 (e). Service in Vietnam includes the landmass and the territorial sea, which is defined as the 12 nautical miles surrounding Vietnam. See Procopio v. Wilkie, 913 F.3d 1375-1376, 1379-1380 (Fed. Cir. 2019). Entitlement to service connection for heart disease, to include Atrial Fib, Left bundle branch block (LBBB), and mild cardiomyopathy. The Veteran contends that he has ischemic heart disease (IHD) as a result of his exposure to Agent Orange while stationed in Vietnam. See, April 2010 claim. The Veteran has also asserted that he is entitled to service connection for cardiac ischemia. See Fully Developed Claim Received February 2018. The Veteran further asserts that he has a heart disability that is related to service, to include as secondary to herbicide exposure. See Appellate Brief Received by the Board in March 2021. As previously noted, the Veteran served in the Republic of Vietnam and herbicide exposure is presumed. However, as discussed in more detail below, a review of the Veteran’s medical record reflects that the preponderance of the evidence does not support that he has heart disease that is associated with ischemia. As such, while the Veteran does have heart problems, they have not been shown to be ischemic in nature, and therefore the Veteran’s claimed condition of heart disease is not entitled to presumptive service connection due to herbicide exposure. 38 § C.F.R. 3.309(e). Nevertheless, even when a Veteran is found to not be entitled to a regulatory presumption of service connection for a given disability, the claim must nevertheless be reviewed to determine whether service connection can be established on another basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). A review of the Veteran’s service treatment records (STRs) does not show a diagnosis related to a heart condition, nor do they reflect any complaints or treatments that may be construed to be related to a later occurrence of a heart condition. The Veteran was afforded a VA examination in November 2010. The examiner noted previous diagnoses of congestive cardiomyopathy and left bundle branch block (LBBB) in 2005. The Veteran took the following prescribed medications: hydrochlorothiazide (25 mg), Losartan (50 mg), and simvastatin (20 mg). There was no history of percutaneous coronary intervention, myocardial infarction, coronary bypass surgery, heart transplant, implanted cardiac pacemaker, or automatic implantable cardioverter defibrillator. The Veteran did not have congestive heart failure. The Veteran reported symptoms of dyspnea. The examiner found METS level of 5 to 7, consistent with activities such as golfing, mowing lawn, heavy yard work. A March 2009 left ventricular ejection fraction (LVEF) was 45 percent. There was no evidence of cardiac hypertrophy or dilatation. The examiner opined that the Veteran did not have IHD. Treatment records dated November 2010 and January 2011 noted that the Veteran was prescribed a blood pressure medication (Cozaar). Cardiovascular examination was negative for chest pain, palpitations, tachycardia, orthopnea, and edema. Past medical history positive for coronary artery disease (CAD). Current problems include fatigue, hyperlipidemia, and hypertension. On December 2012 VA examination, the examiner noted no history of percutaneous coronary intervention, myocardial infarction, coronary bypass surgery, heart transplant, implanted cardiac pacemaker, automatic implantable cardioverter defibrillator, or congestive heart failure. The Veteran denied experiencing symptoms of dyspnea, fatigue, angina, dizziness, or syncope with any level of physical activity. There was no evidence of cardiac hypertrophy by EKG (electrocardiogram). LVEF was 50 percent. The examiner reviewed an October 2003 document where the Veteran reported chest pain the day before that lasted 2 minutes and resolved with rest with no recurrence. The examiner found there were no further entries or reported episodes of chest pain or angina and no cardiac work up was ever located. The diagnosis of angina was never formally made using standard diagnostic studies or cardiac evaluation. In addition, the Veteran denied angina, chest pain or any other cardiac symptoms currently or in the recent past. The Veteran no longer needs antihypertensive medications due to implementation of healthy lifestyle changes which include: healthy diet, weight loss and running every day for exercise. There is no evidence for IHD or angina. A June 2013 letter from the Veteran’s treating cardiologist noted that the Veteran was seen for a 3-year followup regarding history of cardiomyopathy and abnormal EKG. He reported having right-sided chest pain aggravated by movement or inspiration. It occurred after he was kicked in the chest by a cow. The pain was nonexertional. Cardiac review of systems was otherwise negative. Heart rate was normal. There were no carotid bruits. Cardiac auscultation was normal. There was no pretibial edema. A 12-lead EKG was unchanged with sinus rhythm. Occasional PAC (premature atrial contractions) and LBBB. Echocardiogram shows new onset mild mitral regurgitation. Left ventricular function remained normal. LVEF was estimated at 50 to 55 percent. The Veteran was reassured that his ventricular function has remained quite normal and that he has only mild mitral regurgitation. His chest pain was clearly noncardiac in origin (normal angiogram in 2007). A private treatment record from November 2013 noted the Veteran’s past medical history included CAD and the Veteran’s treatment with a cardiologist in Tucson. The Veteran’s cardiovascular examination noted a normal heart rate and regular rhythm but included an assessment of CAD. In May 2014, the Veteran presented on several occasions with complaints of severe left-sided chest pain. Notes included the following. During acute spells, the Veteran was very dizzy. He has diagnoses of hypertension and hyperlipidemia. Cardiovascular examination was normal. Probably has intercostal neuralgia or herpetic neuralgia; doubts coronary etiology. Veteran had normal angiogram in 2007 and all risk factors are well controlled. A stress echocardiogram was negative for ischemia. There was no evidence of fixed coronary artery disease. In July 2014, the Veteran presented with chest pain and upper back pain. Precordial chest pain was noted. He started on antibiotics two days previously. He had a nuclear stress test which was normal. Pain was more so when he takes deep breath or coughed. A bone scan showed multiple rib fractures on both sides, accounting for his pain. Cardiovascular examination revealed normal rate, regular rhythm, normal S1 and S2 with no S3/S4 gallop, rubs or clicks, no edema. The examiner assessed precordial chest pain, most probably secondary to multiple fractures. A September 2014 employment physical noted that the Veteran suffered a work-related injury and fall in May 2014, and that he subsequently had extensive cardiac and musculoskeletal workup done. He still had pain. He also reported interscapular pain ever since his chest wall pain started. Past medical history included coronary artery disease, hyperlipidemia. Cardiac catherization was last done 2007 with normal results. Current problems included coronary artery disease. The examiner found that the Veteran had posttraumatic musculoskeletal pain. When he started working in first week of May, he was opening heavy doors as well as frequently going up and down the stairs. His pain was quite severe in second week of May and initially we thought it may be cardiac, however cardiac workup was negative. Subsequently he underwent CT of the chest, x-rays as well as radioisotope study. All the studies have shown that the Veteran had multiple rib fractures on the right side from 5th to 8th ribs and on the left side fourth as well as 9th ribs. The Veteran has not been working since then. His condition has not much changed, perhaps because of multiple deep fractures and his age. On August 2016 VA examination, the Veteran reported having intermittent chest pain since the 1990s. He had been treated for hyperlipidemia and hypertension for years. In 2007 he had severe chest pain and was medically evacuated to Tucson Medical Center. He underwent cardiac catheterization which was negative for coronary artery disease. He stated that he has continued to have intermittent chest pain since that time. He is followed by a cardiologist in Tucson. He last had a nuclear stress test in 2014 which was negative for coronary artery disease. The examiner noted that the EKG was abnormal with LBBB. The etiology of LBBB is unknown, but it does not constitute a diagnosis of coronary artery disease. The examiner noted no history of myocardial infarction, congestive heart failure, arrhythmia, a heart valve condition, an infectious cardiac condition, pericardial adhesions, or procedures for a heart condition. Physical examination revealed regular rhythm. Point of maximal impact was not palpable. Heart sounds were normal. There was no jugular-venous distension. Auscultation of the lungs was clear. Peripheral pulses were normal. There was no peripheral edema. Diagnostic testing did not show cardiac hypertrophy or cardiac dilatation. Echocardiogram showed LVEF of 50 to 55 percent. Wall motion and thickness was normal. The Veteran reported chest pain with strenuous exertion; however, the chest pain description was not consistent with a diagnosis of angina. Results of interview-based METs test showed METs level of 7 to 10, found to be consistent with activities such as climbing stairs quickly, moderate bicycling, sawing wood, and jogging. The examiner opined that the Veteran does not have a diagnosis of IHD/coronary artery disease. Testing including echocardiogram, nuclear stress testing and cardiac catheterization have all failed to show evidence of ischemic heart disease/coronary artery disease. Review of medical records shows that the Veteran was evaluated on multiple occasions for atypical chest pain. All tests to date have been negative for coronary artery disease. In 2014 his primary care physician wrote a letter indicating that his chest pain was atypical in nature and was most likely due to rib fractures that were seen on bone scan. The Board takes note of the factual information provided by the July 2016 examiner; however, no probative value is accorded to the etiological opinion as the examiner failed to address and reconcile the conflicting diagnosis and medical findings of the November 2013 private examiner’s assessment of CAD. The Veteran was afforded another examination in October 2019. The examiner found that the Veteran’s heart condition was less likely than not related to service. The examiner stated that after reviewing the records dated October 1964 to October 1968 the veteran’s current diagnoses of congestive cardiomyopathy, left bundle branch block, the August 2016 EKG noting marked sinus arrhythmia, first degree AV block, the August 2016 echocardiogram revealing left ventricular ejective fraction of 50 to 55 percent, and normal wall motion and thickness are less likely than not incurred in service or caused by the claimed exposure to herbicide. As rationale, the examiner stated that the Veteran’s heart conditions are not known cardiac manifestations from Agent Orange exposure. Further the examiner stated that the heart conditions are more likely than not from a lifetime of wear and tear on the heart and or genetic in origin. Additionally, the examiner stated that research has shown that Agent Orange exposure can lead to a host of health problems, including cancer and heart disease. The examiner also stated that CAD is on the list of medical conditions eligible for presumptive service connection due to Agent Orange exposure but that the Veteran does not have CAD. A clarifying opinion was provided in October 2019 regarding the conflicting evidence surrounding the diagnosis of the Veteran’s heart conditions. The examiner was specifically asked whether the Veteran suffers from ischemic heart disease. The examiner was instructed to explain why or why not and address the January 2011 private treatment record indicating a past medical history of coronary artery disease and the November 2013 private examiner’s assessment of coronary artery disease. The examiner responded by stating that the Veteran has been treated for long standing coronary artery disease specific to hyperlipidemia. Additionally, the examiner noted that coronary artery disease is the narrowing or blockage of the coronary arteries, usually caused by atherosclerosis. It was stated that atherosclerosis (sometimes called “hardening” or “clogging” of the arteries) is the buildup of cholesterol and fatty deposits (called plaques) on the inner walls of the arteries. The examiner further explained that coronary artery disease is the same thing as Ischemic Heart Disease (IHD) and noted that therefore, any degree of coronary artery narrowing can cause ischemia. The examiner stated that the Veteran’s diagnosis of CAD from his private physicians was determined based on lab values only (i.e. January 2011 and November 2013 which both note CAD), not on diagnostic testing such as Echocardiograms and Dopplers. The examiner further noted that the Veteran’s latest ECHO cardiogram from 2016 does not suggest whether or not the Veteran has significant CAD or any degree of CAD at all, but the Stress test from May 14, 2014 indicated no evidence of CAD. Additionally, the examiner stated that the Veteran’s diagnosis from private physicians of CAD is based solely off lab values and it has been known that cholesterol comes from either inherently high from genetics or from diet. The examiner stated that the Veteran’s medical records also indicate that there was no previous family history of CAD as well. Further it was noted that the Veteran’s elevated cholesterol labs are most likely elevated due genetics but not to a point or level that is causing coronary artery disease which has been indicated on multiple test throughout his medical history ( i.e. January 2011 and November 2013 which both note CAD). The examiner stated that at this time the veteran is currently not taking any and all medication for any heart related issue. Notwithstanding, the Veteran’s detailed response indicating that the Veteran did not have a credible medical diagnosis of CAD, the October 2019 examiner checked a box indicating that CAD was one of the Veteran’s heart conditions. Given the thorough detail provided regarding why the Veteran did not actually have a diagnosis of CAD in the rationale section of the examination report, the Board finds that the examiner’s selection of CAD as a diagnosis in the clarifying opinion was inadvertent. The Board notes that although a subsequent medical opinion was requested, the Board finds that the October 2019 clarifying medical opinion is adequate. The examiner reconciled the reports of CAD provided by the private examiners and stated that it was the private examiners who documented CAD and this was based on lab test and not echocardiograms and Dopplers which are the proper assessments for detecting CAD. The October 2019 examiner made it clear that the January 2011 and November 2013 test that note CAD incorrectly relied solely on lab values as opposed to echocardiograms and Dopplers to determine whether or not the Veteran had CAD. The Board finds that the selection of CAD as a diagnosis was inadvertent and assigns probative weight to the October 2019 opinion. A subsequent opinion was requested in May 2020 to further clear up discrepancies on whether the Veteran had a diagnosis of CAD given the conflict in the October 2019 examination. In review of the medical records, the May 2020 examiner found there are records from Dr. Patel with CAD listed in past medical history (in 2013). However, a stress echocardiogram (in 2014) and hospitalizations did not show a diagnosis of CAD. There are no recent findings of ischemic heart disease or CAD in the records to make that diagnosis definitively. Therefore, it is less likely than not that the veteran has a diagnosis of coronary or ischemic heart disease. The Veteran was afforded another examination in September 2020. The September 2020 examiner provided several separate opinions all related to the Veteran’s heart condition. The examiner opined that the Veteran’s heart condition was less likely than not (less than 50 percent or greater probability) incurred in or caused by an in-service injury, event, or illness. As rationale the examiner stated that a review of the Veteran’s medical treatment records does not support any history of ischemic heart disease. The examiner stated that the January 2011 private treatment record mentioning a past medical history of CAD and the November 2013 private examiner’s assessment of CAD are solely based on the subjective report of the Veteran and has not been supported by prior cardiology assessments and treatment records. The examiner also noted that the 2007 cardio treatment records clearly show no ischemia and coronary arteries are normal. Furthermore, the examiner stated that after 2007, the Veteran was seen by cardiology and has not been diagnosed with CAD/ ischemic heart disease (IHD) or other heart conditions that meet the criteria for IHD. The examiner concluded that therefore there was no history of IHD during the appeal period. The examiner noted that the Veteran has a history of atrial fibrillation (A-fib), left bundle branch block (LBBB), and mild cardiomyopathy. The examiner explained that A-fib can result from the Veteran’s history of hypertension. The examiner also stated that the LBBB is likely associated with the mild cardiomyopathy on ECHO and cardiomyopathy is likely due to the Veteran’s hypertension. Additionally, the examiner stated that a review of the STRs shows no history of the diagnosed heart conditions or symptoms relate to an underlying cardiac condition. Furthermore, it was noted that the current cardiac conditions are not known to be caused by exposure to herbicides. The September 2020 examiner also opined that the diagnosis of congestive cardiomyopathy and LBBB are more likely related to the Veteran’s history of hypertension and is not caused by IHD. Additionally, it was noted that the cardio treatment records do not support any history of CAD/IHD. The examiner noted that there is no history of IHD in the medical treatment records. The examiner clarified that the 2016 EKG noting marked sinus arrhythmia, first degree AV block, and the August 2016 echocardiogram revealing left ventricular ejection fraction of 50 to 55 percent and normal wall motion and thickness are simply noting the presence of an arrythmia and no evidence of IHD. The examiner re-iterated that there is no evidence of hypokinetic movements of the heart motion and no evidence of ischemia on ECHO. The examiner also stated that previous stress echo and angiograms were all negative for ischemia or significant plaque. Based upon the foregoing, the preponderance of evidence establishes that the Veteran does not have CAD or any type of ischemic heart condition. The Board further finds that direct service connection for a heart disability, to include A-fib, LBBB, and cardiomyopathy, is not warranted. The Board places significant probative value on the most recent clarifying opinions of record to include the VA examinations dated May 2020 and September 2020. These examiners found the Veteran’s heart conditions including A-fib and LBBB (which is likely associated with mild cardiomyopathy) are likely related to his hypertension, and not related to his active military service or his exposure to herbicides. The Veteran’s hypertension has not been found to be related to his active military service. The Board finds that the May 2020 and September 2020 medical opinions thoroughly reconciled the conflicting evidence provided by the private examiners who documented an occurrence of CAD. Specifically, the September 2020 examiner stated that the January 2011 private treatment record mentioning a past medical history of CAD and the November 2013 private examiner’s assessment of CAD are solely based on the subjective report of the Veteran and have not been supported by prior cardiology assessments and treatment records. The Board finds highly persuasive the fact that the Veteran’s coronary arteries were reported to be normal and the fact that there was no showing of ischemia in the 2007 cardio treatment records. The May 2020 and September 2020 examiners relied on the appropriate cardiology assessments and found that the appropriate medical tests reveal that the Veteran does not currently have, nor during any portion of the appeal period, did he have CAD or any type of ischemic heart disease. The Board acknowledges that the Veteran does have several heart conditions to include A-fib, LBBB, and cardiomyopathy, but these heart conditions have not been shown to be related to the Veteran’s active duty service. Instead, the primary cause of his heart conditions is stated by medical professionals to be hypertension. Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The May 2020 and September 2020 medical opinions are based on sufficient facts and data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners have the skill and expertise to analyze the medical evidence and render an opinion as to the etiology of the Veteran’s heart conditions. See Black v. Brown, 10 Vet. App. 279, 284 (1997). In addition, the Veteran has not submitted any objective medical evidence or medical treatises that would support, or even suggest, a correlation between herbicide exposure and his later developed heart disease conditions. The Board also notes that the onset of the Veteran’s heart conditions wasn’t until many decades after service. Consideration is given to the Veteran’s contention that his heart disabilities were caused by his active military service, to include exposure to Agent Orange while serving in the Republic of Vietnam. While lay persons are competent to provide opinions pertaining to certain medical issues, the etiology of heart disease, as is specific to this case, is outside the realm of common knowledge for someone, such as the Veteran, who does not possess medical training, specialized expertise, or experience. Jandreau v. Nicholson, 492. F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Accordingly, service connection for a heart disability, to include Atrial Fib, Left bundle branch block (LBBB), and mild cardiomyopathy, on either a presumptive or a direct basis, is denied. As the preponderance of the evidence is against the claim for service connection for a heart disability, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Dorsey-Kwansa, 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.