Citation Nr: 21021756 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-28 259 DATE: April 13, 2021 ORDER Service connection for hypertension is granted. Service connection for a heart disorder claimed as atrial fibrillation, sick sinus syndrome, and sinoatrial node dysfunction with pacemaker, is granted. Service connection for a separate respiratory disorder is denied. REMANDED Service connection for a thyroid nodule is remanded. FINDINGS OF FACT 1. The Veteran had active duty from July 1962 to April 1966. 2. The Veteran was exposed to herbicide agents during service. 3. Hypertension was incurred in service; the current diagnosis of hypertension has been related to herbicide agent exposure. 4. Atrial fibrillation is proximately due service-connected disability. 5. The Veteran does not have a current respiratory disorder. CONCLUSIONS OF LAW 1. Hypertension disorder was incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. A heart disorder claimed as atrial fibrillation, sic sinus syndrome, and sinoatrial node dysfunction with pacemaker was proximately due to service-connected disabilities. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2020). 3. A current respiratory disorder was not incurred in service. 38 U.S.C. §§ 1110, 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The issue of service connection for atrial fibrillation, sick sinus syndrome, and sinoatrial node dysfunction with pacemaker has been recharacterized as a heart disorder. The Veteran is already service connected for ischemic heart disease at a noncompensable level. He has been diagnosed with many heart disorders during the appeal period, however, and the RO has not undertaken sufficient development to clarify which, if any of his multitudes of heart diagnoses is associated with ischemic heart disease. A medical examiner found that atrial fibrillation was separate from ischemic heart disease, but otherwise multiple remands has not resulted in any clarity. As such, the claim on appeal has been widened to a heart disorder, to specifically include atrial fibrillation and to exclude ischemic heart disease. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be granted on a presumptive basis for diseases associated with herbicide exposure under 38 C.F.R. § 3.309 if a veteran: (1) served in the Republic of Vietnam between January 1962 and May 1975, (2) served between April 1968 and August 1971 in or near the Korean Demilitarized Zone; (3) served near the base perimeter of certain Thailand Air Force Bases during the Vietnam War era, or (4) regularly and repeatedly operated, maintained, or served aboard aircraft known to have been used to spray a herbicide agent during the Vietnam War Era. 38 C.F.R. § 3.307(a)(6). Notwithstanding the foregoing provisions regarding presumptive service connection, a veteran is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Hypertension The Veteran claimed hypertension was caused by herbicide agent exposure in service. An earlier decision made a favorable finding of in-service herbicide agent exposure from service around the perimeter of Thailand Air Force Bases. Turning to the evidence, the first element of service connection – a current disability – is met as he has been treated for hypertension for the entirety of the appeals period. Additionally, an October 2020 VA examiner confirmed the diagnosis. As such, the first element is met. Next, the second element of service connection – an in-service incurrence – is also met. As stated above, in-service exposure to herbicide agents has been conceded. Hypertension is not currently listed as presumptively linked to herbicide agent exposure under 38 C.F.R. § 3.309, however service connection may still be warranted on a direct basis. As such, the second element is met. Finally, as to the third element – a medical nexus - two conflicting opinions were added to the claims file since the July 2020 Board remand. The first, from July 2020, found it was as likely as not that hypertension was caused by herbicide agent exposure in service. The examiner stated that hypertension did not manifest prior to service, and there was evidence of chronicity. Additionally, the examiner cited a December 2016 VA article that cited a November 2016 VA study which concluded that occupational herbicide exposure history and Vietnam-service-status were significantly associated with hypertension risk. An addendum opinion from a separate medical professional was issued January 2021. It found unlikely the notion that service related to hypertension. The opinion is less probative than the first opinion, however. It appears to be based to a certain degree on the fact that hypertension may not be presumptively service connected due to herbicide exposure as, for example, diabetes may be. See 38 C.F.R. §§ 3.307, 3.309. In short, the second opinion does not sufficiently address the question of whether hypertension directly relates to herbicide exposure. See Combee, supra. This appears to be due to the fact that the later opinion did not consider studies suggesting a link between herbicides and hypertension, as was requested in the Board’s July 2020 remand. See Stegall v. West, 11 Vet. App. 268 (1998). As such, resolving all reasonable doubt in the Veteran’s favor, the third element is met, service connection for hypertension is warranted and the appeal is granted. Heart Disorder The Veteran claimed that he had atrial fibrillation and the other heart disorders listed above because of herbicide agent exposure during service. However, the evidence following the July 2020 Board remand supports service connection on a secondary basis, so the issue will also be analyzed under that framework. Turning to the evidence, the first issue of service connection – a current disability – is met as an October 2020 VA examiner found he was diagnosed with the following heart disorders: coronary artery disease in 2009; congestive heart failure in October 2006; implanted cardiac pacemaker in March 2007; ischemic heart disease in 2006; atrial fibrillation in February 2003; sick sinus syndrome in March 2007; and sinoatrial node dysfunction with pacemaker in March 2007. He is already service connected for ischemic heart disease and assessed a noncompensable rating. It is unclear if service connection for ischemic heart disease incorporates any of the other diagnosed heart disorders, however as his combined heart disorder symptoms would warrant a compensable rating it is clear the RO has made a distinction that some, to include atrial fibrillation, are separate and not yet service connected. His original claim for ischemic heart disease included congestive heart failure, but it is unclear from either the Board decision awarding service connection or the rating decision implementing that decision if congestive heart failure was considered part and parcel of his award of service connection. Regardless, given his multitude of diagnosed heart disorders, the first element is met. As for the next element of service connection – a service-connected disability – this is also met as the Veteran is service connected, as mentioned above, for ischemic heart disease, as well as diabetes mellitus type 2 (DM), and as of this decision, hypertension. Thus, the second element is met. The third element of service connection – a medical nexus – is again complicated by conflicting medical opinions. The October 2020 VA examiner found that coronary artery disease was caused by the Veteran’s DM and herbicide agent exposure, that congestive heart failure was caused by hypertension, coronary artery disease, atrial fibrillation, DM, and herbicide agent exposure. The examiner stated that sinoatrial node dysfunction with implanted pacemaker resulted from abnormal automaticity, conduction, or both of the sinoatrial node and surrounding tissues, that sick sinus syndrome-scar tissue was from a past heart surgery, certain medications used to treat hypertension, and the breakdown of heart muscle due to age, and finally that atrial fibrillation was caused by abnormalities/damage to the heart’s structure are the most common, with possible causes being high blood pressure and heart attack. The examiner separately opined that atrial fibrillation, sick sinus syndrome, and sinoatrial node dysfunction with pacemaker were as likely as not caused by service because they did not preexist service, were related to herbicide exposure during service, and evidence of chronicity had been established. The January 2021 examiner provided an opinion countering the claim of entitlement to service connection on a direct basis. But the opinion tends to support the notion of secondary service connection. The October 2020 VA medical examination lists atrial fibrillation risk factors of heart attack, and the same examination report indicates the Veteran had previous myocardial infarctions, which presumably is related to his service-connected ischemic heart disease, and high blood pressure, for which he is service-connected by way of this decision for hypertension. Similarly, the January 2021 VA examiner found that atrial fibrillation most likely caused by high blood pressure and interventional heart procedure, again, each of which he is service connected for by way of hypertension and ischemic heart disease. The two opinions both indicate that service-connected disabilities were the likely cause of atrial fibrillation. While a third remand for additional clarity on the Veteran’s myriad heart disorders would also be warranted, in the best interest of the Veteran, judicial efficiency, and resolving all reasonable doubt in his favor, the third element of secondary service connection is met, and service connection for atrial fibrillation is granted. Resolving all reasonable doubt in the Veteran’s favor, service connection for atrial fibrillation is warranted and the appeal is granted. Respiratory Disorder The Veteran claims he has a respiratory disorder caused by herbicide agent exposure in active service. Turning to the evidence, the first element of service connection – a current disability – is not met, as an October 2020 VA examiner did not diagnose him with a current respiratory disorder. Although he has exhibited shortness of breath and difficulty breathing throughout the appeal period, the October 2020 VA examiner determined that these symptoms were associated with his now service-connected heart disorders. As such, service connection for a separate respiratory disorder would not be appropriate, and these symptoms should be compensated by the ratings assigned to service-connected ischemic heart disease and other heart disorders to include atrial fibrillation. As such, the first element is not met, and the appeal is denied. The Board has considered the Veteran’s lay statements that a respiratory disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to the Veteran’s statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. REASONS FOR REMAND Additional development is required before deciding the issue of service connection for a thyroid nodule. The October 2020 VA opinion, which was provided pursuant to the July 2020 remand, states that a thyroid nodule was less likely than not related to active service because a thyroid nodule is not currently on the list of VA presumptive diseases related to AO/herbicide exposures. In an addendum opinion, the examiner should address the question asked in the July 2020 remand – i.e., is the thyroid nodule caused by herbicide exposure on a direct basis. That the disease is not listed as having a presumptive relationship under 38 C.F.R. § 3.309 in no way precludes service connection from being warranted on a direct basis. As such, an addendum opinion is necessary. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate with the claims file. 2. Refer the claims file to an appropriate clinician. After reviewing the record, the clinician is asked to address the following: (a.) Is it as likely as not (a 50 percent probability or greater) that the Veteran’s thyroid nodule was due to active service, to include exposure to herbicide agents? (continued on the next page) 3. All opinions must be accompanied by a well-reasoned rationale. The opinion should not rely solely on the fact that thyroid nodules are not on the list of diseases presumably linked to herbicide agent exposure. See 38 C.F.R. § 3.309. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.