Citation Nr: 21027221 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 17-52 587 DATE: May 5, 2021 ORDER Service connection for a heart condition is denied. REMANDED Entitlement to service connection for a prostate condition, to include prostate cancer, is remanded. FINDING OF FACT The weight of the evidence is against finding that the Veteran's heart conditions can be categorized as ischemic heart disease or that his heart conditions are otherwise related to service, including exposure to herbicide agents therein. CONCLUSION OF LAW The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 1966 to August 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2020, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge, and a transcript of the hearing has been associated with the claims file. In May 2020, the Board remanded these claims for further development. Service Connection Service connection will be granted if the evidence in the record demonstrates that a current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) an in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Veterans who, during active military, naval, or air service, served in the Republic of Vietnam from February 28, 1961 to May 7, 1975, shall be presumed to have been exposed to an herbicide agent, including Agent Orange, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R.§ 3.307(a). If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, to include ischemic heart disease, shall be service-connected if the requirements of § 3.307(a)(6) are met, even though there is no record of such disease during service, provided that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Ischemic heart disease includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. Ischemic heart disease does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke, or any other condition that does not qualify within the generally accepted medical definition of ischemic heart disease. 38 C.F.R. § 3.309(e), Note 1. The Secretary of Veterans Affairs has determined that there is no positive association between exposure to herbicide agents and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. Id. Although a veteran may not be entitled to a regulatory presumption of service connection for a given disability, the claim must be reviewed to determine whether service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994), rev'd in part, Combee v. Principi, 4 Vet. App. 78 (1993). Certain chronic diseases, to include arteriosclerosis, cardiovascular-renal disease, endocarditis (which covers all forms of valvular heart disease), and myocarditis, are subject to presumptive service connection if they manifest to a compensable degree within one year from separation from service, even if there is no evidence of the disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). For chronic diseases enumerated at 38 C.F.R. § 3.309(a), see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), where the condition is noted in service or during the presumptive period, is not shown to be chronic or where the diagnosis of chronicity may be legitimately questioned, a claimant may establish entitlement to service connection based on a demonstration of continuity of symptoms. Entitlement to service connection for a heart condition is denied. The Veteran was diagnosed with non-ischemic cardiomyopathy, paroxysmal atrial fibrillation, and left ventricular hypertrophy (LVH). Thus, the first element of service connection is satisfied. The Veteran contends that his heart conditions are due to his in-service herbicide agent exposure. The Veteran's service personnel records reflect that he served in the Republic of Vietnam during the Vietnam Era, from December 1966 to December 1967; thus, he is presumed to have been exposed to an herbicide agent, and the second element of service connection is met. The Veteran was afforded VA examinations in November 2014 and December 2020. In the November 2014 VA records review examination report, the examiner diagnosed the Veteran with non-ischemic cardiomyopathy and noted that this condition was not entitled to presumptive service connection based on herbicide agent exposure. However, the examiner did not address whether the Veteran's heart condition was directly related to his service. Although a disease may not be included as a presumptive disorder, direct service connection may be established by evidence demonstrating the disease was in fact "incurred" during service, to include as based on exposure to herbicide agents. See Combee, 34 F.3d at 1042. Thus, the November 2014 examination is inadequate. In the December 2020 VA records review examination report, the examiner noted the Veteran was diagnosed with congestive heart failure, paroxysmal atrial fibrillation, non-ischemic cardiomyopathy and LVH. The examiner opined that none of the Veteran's heart conditions would be considered within the generally accepted medical definition of ischemic heart disease. Additionally, there is nothing in the Veteran's service treatment records, including entrance or separation examinations, that indicates a heart condition. The examiner explained that while this examination was a records review, there were in-person interviews with the Veteran in September 2019 and July 2020 in his VTRs. At these examinations, the Veteran denied symptoms associated with ischemic heart disease, including dizziness, orthostatics, shortness of breath at rest, chest pain, palpitation, orthopnea, abdominal pain, nausea, vomiting, leg swelling, pre-syncope or syncope. The examiner stated that none of the Veteran's heart conditions were included in the listed conditions eligible for presumptive service connection. There is also no evidence of symptoms of or treatment for a heart condition within one year of separation from service, nor chronicity of treatment since service. The examiner explained that cardiomyopathy, inclusive of congestive heart failure and atrial fibrillation, is a disease of the heart muscle that makes it harder for the heart to pump blood to the rest of the body and that it is not ischemic. The examiner explained that cardiomyopathy is the medical term that includes all causes of decreased heart function other than those caused by heart attacks or blockages in the arteries of the heart, and that it is not ischemic related. The examiner described LVH as thickening of the walls of the heart's main pumping chamber (left ventricle) and that it develops in response to factors, such as hypertension, that cause the left ventricle to work harder, and that it is not consistent with ischemic heart disease. Additionally, the examiner opined that the Veteran's diagnosed heart conditions were more likely due to the natural aging process or, in the case of LVH, high blood pressure and not due to his service, including any herbicide agent exposure. At the March 2020 hearing, the Veteran's representative argued that there "seems to be a conflicting opinion that the cardiopathy may be several instances in detail" and states that the Veteran's cardiomyopathy might actually be considered an ischemic heart disease. However, no additional evidence was provided supporting the representative's argument. The representative also argued that because the November 2014 examiner did not conduct an in-person examination, the examiner was unable to speak with the Veteran about his symptoms and how his conditions affected him. The weight of the evidence of record is against finding that any of the Veteran's heart conditions are considered to be an ischemic heart disease. The Veteran's VTRs consistently noting he has been diagnosed with non-ischemic cardiomyopathy and the December 2020 VA examination are the most probative evidence of record with respect to whether the Veteran has an ischemic heart disease. Although the Veteran's representative argued that there may be conflicting medical opinions on what qualifies as ischemic heart disease during the March 2020 hearing, no such medical literature or other supporting evidence has been submitted. As the representative noted during the hearing, he is not a doctor, and therefore is not competent to provide an opinion on whether the Veteran's heart conditions qualify as an ischemic heart disease. As a lay person, the representative is not competent to make any determinations regarding the Veteran's heart conditions because he lacks the requisite medical training and expertise. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Thus, the Board finds his argument to be of little probative value. The December 2020 examiner addressed the representative's contention by stating that the generally accepted medical definition of ischemic heart disease does not include any of the Veteran's heart conditions, and the VTRs also refer to his conditions as "non-ischemic." The examiner's opinion is accompanied by sufficient rationale and the Board places significant weight of probative value on the opinion. Thus, the Board finds the Veteran does not have an ischemic heart disease. Furthermore, the Veteran's representative previously argued that a records review examination is essentially inadequate because the Veteran is not present. However, the December 2020 opinion is adequate because it includes all needed findings to permit the necessary analysis to determine whether or not the Veteran's heart conditions are considered ischemic heart disease. The examiner also reviewed the Veteran's most recent in-person cardiology appointments, including anything he reported to his physician during these appointments. The examiner explained that the Veteran was not examined due to the COVID-19 pandemic, and explained that a personal examination would not change the content of the report, as the record contains recent medical records that provide clinical, objective cardiology specialist knowledge based, including in-person interview and physical examination. As such, the Veteran's personal history and medical information has been addressed in the examination report. Thus, the Board finds the December 2020 examination adequate and that it substantially complies with the Board's May 2020 remand directives even though it did not include an in-person examination. Although the weight of the evidence is against a finding that the Veteran has ischemic heart disease entitled to presumptive service connection based on his presumed exposure to herbicide agents, the Board will consider whether direct service connection is warranted for any of the Veteran's heart conditions. After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against finding the Veteran's heart conditions are related to his service. As noted, the Veteran did not have any heart conditions nor symptoms of heart conditions during service or within one year of separation from service; thus, service connection on a presumptive basis as a chronic disease is not warranted. The Veteran also does not have any chronicity of treatment for heart conditions, having been diagnosed with non-ischemic cardiomyopathy and congestive heart failure in 2010, over 40 years after separation from service. Additionally, the December 2020 examiner opined the Veteran's heart conditions were more likely than not due to his advancing age because age is a risk factor for all of his conditions. The examiner further opined the Veteran's LVH was more likely than not due to his high blood pressure. The Board places great weight of probative value on this opinion as it gives a thorough explanation of the nature of the Veteran's heart conditions and their etiologies. The record does not contain a contrary medical opinion. Therefore, the Board finds the evidence of record is against awarding service connection for the Veteran's heart conditions. For the reasons set forth above, the preponderance of the evidence is against finding the Veteran's heart conditions are related to his service. Accordingly, service connection for heart conditions is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REMAND Entitlement to service connection for a prostate condition, to include prostate cancer, is remanded. During the March 2020 Board hearing, the Veteran testified that he was diagnosed with prostate cancer in November 2019. VA treatment records obtained on remand reflect that in November 2019 an Imaging MRI from UIHC, Iowa City, Iowa was scanned into Vista Imaging; however, the report of this scanned document is not included in the Veteran's VA treatment records. The Veteran further reported this diagnosis to his treating physician at the Iowa City VAMC in March 2020, stating he was diagnosed using a special MRI at UIHC. March 2020 records reflect that a document from UIHC Urology was scanned into Vista Imaging; however, the report of this scanned document is not included in the Veteran's VA treatment records. In July 2020, a VA physician recorded a note he viewed on "Epic" from Dr. G. at UIHC, noting Dr. G. called the Veteran and discussed the benign pathology of his MRI prostate biopsy. Dr. G. also discussed the limitations of an MRI biopsy, stating that the MRI could miss a high-grade lesion. Follow up in six to twelve months at VA was suggested. As the records from UIHC are pertinent to the Veteran's claim and appear to be constructively of record as part of the Veteran's VA treatment records, remand is required to attempt to obtain them. The matter is REMANDED for the following action: 1. Obtain urology and imaging records from UIHC in Iowa City, Iowa that appear to be available through VA records databases (Vista Imaging), as indicated in November 2019, March 2020, and July 2020 VA treatment records. 2. If any of the records requested in item 1 cannot be obtained through VA's records systems, then ask the Veteran to complete a VA Form 21-4142 for treatment received at UIHC (University of Iowa Hospitals and Clinics), including in November 2019, March 2020, and July 2020. Make two requests for the authorized records from UIHC unless it is clear after the first request that a second request would be futile. 3. Obtain the Veteran's VA treatment records from December 2020 to the present. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.