Citation Nr: 21031142 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 19-20 803 DATE: May 20, 2021 ORDER Entitlement to service connection for a heart disability other than coronary artery disease (CAD), to include as due to herbicide agent exposure and/or as secondary to service-connected CAD, is denied. Entitlement to service connection for a lung disability, to include as due to herbicide agent exposure, is denied. REMANDED Entitlement to service connection for hepatitis B, to include as due to herbicide agent exposure, is remanded. Entitlement to service connection for cirrhosis of the liver, to include as due to herbicide agent exposure and/or secondary to hepatitis B, is remanded. FINDINGS OF FACT 1. The Veteran's valvular heart disease did not have its clinical onset in service and is not otherwise related to service, to include as due to conceded herbicide agent exposure. 2. The Veteran's lung disability did not have its clinical onset in service and is not otherwise related to service, to include as due to conceded herbicide agent and smoke exposure. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lung disability, to include as due to herbicide agent exposure, are not met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a lung disability, to include as due to herbicide agent and smoke exposure, are not met. 38 U.S.C. §§ 1110, 1116, 1131, 5107; 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1958 to May 1965, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. In December 2019 the Board granted service connection for CAD and remanded the remaining issues for additional development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, if a veteran was exposed to an herbicide agent during active military, naval, or air service, certain enumerated diseases shall be service connected if the requirements of 38 C.F.R. § 3.307 are met, even though there is no record of such disease during service. The enumerated diseases associated with exposure to herbicide agents include coronary artery disease, which is already service-connected, and lung cancer. 38 C.F.R. § 3.309(e). Even if a veteran is found not to be entitled to a regulatory presumption of service connection, as is the case here, the claim must still be reviewed to determine if service connection can be established on a direct basis. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In addition to the elements of direct service connection, service connection may also be established on a secondary basis for a disability proximately due to or aggravated by a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). To establish secondary service connection, a Veteran must show: (1) the existence of a present disability; (2) the existence of a service-connected disability; and (3) a causal relationship between the present disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for a heart disability other than CAD, to include as due to herbicide agent exposure and/or as secondary to service-connected CAD, is denied. 2. Entitlement to service connection for a lung disability, to include as due to herbicide agent exposure, is denied. Initially, the Board notes that the Veteran's service treatment records (STRs) and service personnel records (SPRs) are unavailable. In response to the VA's request for service records, the National Personnel Records Center (NPRC) deemed the records "fire related," meaning the records were most likely destroyed in a fire that occurred at the NPRC in St. Louis, Missouri, in July 1973, and a search for alternative sources of records was unsuccessful. See April 2014 VA Form 3101. The Board notes when service records are lost or missing, VA has a heightened duty to assist and notify the claimant in developing the claim, as well as to consider the applicability of the benefit of the doubt rule and to explain its decision. See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran asserts that her heart disability other than CAD and lung disability are due to herbicide agent exposure from bombing missions. See July 2013 and November 2014 Correspondence; June 2015 Congressional; August 2018 Hearing Related Correspondence. Additionally, she maintains that her lung disability is due to the smoke from heavy weaponry fire and chemical grenades. See July 2013 Correspondence, April 2014 VA Form 21-4138, and October 2019 Board Hearing Transcript at 8-10. The record also raises the possibility of a secondary service connection for a heart disorder other than CAD, given that CAD is service-connected. Here, the Veteran has current diagnoses of valvular heart disease and chronic benign lung nodule. See December 2014 and November 2020 VA examination reports. Thus, element one of direct and secondary service connection is met. Regarding element two of direct service connection, herbicide agent exposure is conceded. Additionally, the Veteran testified to smoke inhalation in service from heavy weaponry fire and chemical grenades, and the Board finds her competent reports are consistent with the circumstances of her service. See October 2019 Board Hearing Transcript at 8-10; 38 U.S.C. § 1154(a). Notably, the Veteran does not assert any in-service treatment of a lung or heart disability. Thus, element two of direct service connection is met as to in-service herbicide agent and smoke exposure only. Regarding element two of secondary service connection, the Veteran is service-connected for CAD, and therefore element two is met. For the third and final element, medical nexus, the only competent evidence is against the claims. In this regard, the Board acknowledges the February 2015 letter from Dr. M.E., who has treated the Veteran's heart and lung disabilities, which states that it was "unclear to me to what extent her medical conditions are related to military service. . . I am aware of some observational studies showing a higher incidence of hypertension and valvular heart disease in individuals exposed to agent orange. The multifactorial nature of these conditions, as well as the possibility of reporting bias in the studies make this information difficult to interpret." To the extent this is considered a medical nexus opinion, it is nonprobative, as it is couched in speculation. Moreover, in a June 2014 statement, Dr. S.M. noted a "history of abnormal pulmonary imagining and a history of positive TB (tuberculosis) skin testing. She had exposure to TB as a child, but has not had any active lung disease." Regarding direct service connection and the Veteran's valvular disease, as noted in the December 2019 remand the December 2014 VA opinion against direct service connection is not probative and will not be further discussed. Moreover, the October 2020 VA examiner opined that it was less likely than not that the Veteran's valvular heart disease had its onset in service or was otherwise related to service. In support of this opinion, the examiner emphasized valvular heart disease was generally idiopathic and could be the result of multiple risk factors, including older age, congenital heart conditions present at birth, history of infections that can affect the heart, cardiovascular risk factors, chronic kidney disease, and a history of radiation to the chest. In this regard, the Board emphasizes that the Veteran has reported a prior history of TB infection that predates service, and has testified that she smoked from service until 1988. See Board Hearing Transcript at 10. Private treatment records also note chronic NSAID use potentially impacting her kidneys. See June 1999 records from Dr. R.S. Finally, the examiner noted that there was no widely-accepted, peer-reviewed literature supporting a link between agent orange exposure and the Veteran's valvular disease and that the condition is commonly considered an aging process due to calcium deposition on the valve over time. Regarding secondary service connection and valvular disease, the December 2014 and October 2020 VA examiners opined that valvular heart disease was not proximately due to CAD, as CAD did not cause valvular disease. The October 2020 VA examiner elaborated that "some types of valvular damage can occur in the event of myocardial infarction (MI), with damage to the local area involving a particular valve, which would generally cause disruption of the function of the valve, leading to regurgitation, not stenosis. These are emergent events." The examiner emphasized that the Veteran has not had a MI and is considered to have nonobstructive CAD. Regarding secondary service connection based on aggravation, the October 2020 VA examiner determined that he could not establish a baseline level of severity for valvular heart disease, reasoning that the medical evidence was not sufficient to do so, as the Veteran is stable post valve replacement. The examiner emphasized that valvular disease has a variable course, trace to severe, requiring replacement, and the course varies from individual to individual. The examiner stated that CAD would have no impact on aggravation, as the conditions are completely unrelated pathophysiologically, and there was nothing to indicate aggravation beyond the natural course of valvular disease in general. Finally, the examiner noted the same logic held for valve replacement in the absence of a cardiac event affecting the replacement, such as here. Regarding direct service connection and the Veteran's lung disorder, the November 2020 VA examiner opined that it was less likely than not that the Veteran's chronic benign lung nodule had its onset in service or was otherwise related to service, to include as a result of concede herbicide agent exposure and smoke inhalation from heavy weaponry fire and chemical grenades therein. In support of her opinion, the examiner reasoned that the Veteran's lung nodule was stable and therefore not malignant or cancerous, and emphasized Dr. S.M.'s statement that her granulomatous lung nodule was likely due to infection, such as tuberculosis or fungal exposure. She further emphasized the Veteran's numerous reports throughout the record that the Veteran tested positive for tuberculosis prior to active service. Critically, the examiner further noted that Veteran denied a history of lung infection during active service. Due to the aforementioned facts, the examiner opined that there were more likely causes of the Veteran's current lung nodule that were not related to service, given the weak connections to in-service exposures and the Veteran's denial of any lung disease during service. In this regard, the Board again emphasizes that the Veteran smoked for decades until 1988. See Board Hearing Transcript at 10. Here, the Board finds this VA examiners' opinions against the claims highly probative, as the examiners have considered the entire relevant medical history and provided thorough rationales with supporting data as well as reasoned medical explanations. In this regard, to the extent the Veteran attributes her valvular heart disease and lung disability to service exposures and/or CAD, her opinion is not competent, as she does not have the requisite expertise to determine the etiology of her lung and heart disabilities. Accordingly, the third element for direct and secondary service connection is not met, and the claims fail on this basis alone. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 3. Entitlement to service connection for hepatitis B, to include as due to herbicide agent exposure, is remanded. 4. Entitlement to service connection for cirrhosis of the liver, to include as due to herbicide agent exposure and/or secondary to hepatitis B, is remanded. The Board finds the November 2020 VA opinion and accompanying February 2021 VA addendum opinion inadequate, as they do not address whether or not the Veteran's hepatitis B and cirrhosis are related to the Veteran's conceded herbicide agent exposure in service, as specifically requested in the Board remand. Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: Obtain an addendum opinion from an examiner other than the November 2020 VA examiner to address the nature and etiology of the Veteran's hepatitis B and cirrhosis. The claims file should be reviewed, and all findings reported in detail. The examiner should address the following: (a.) The examiner must opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis B and cirrhosis had their onset during service or is otherwise related to service, to include: (1) as a result of conceded exposure to herbicide agents therein and/or (2) air gun and needle syringe injections prior to each deployment. See July 2013 Correspondence, April 2014 VA Form 21-4138, and October 2019 Board Hearing Transcript at 12. In addressing this question, the examiner must concede current hepatitis B (see November 2020 VA examination report noting functional impairment due to prior hepatitis B infection) address the Veteran's statement that she did not have exposure to any condition post-service that would cause hepatitis B, including no tattoos or intravenous drug use, and consider Dr. S.B.'s statement that the Veteran served in areas with hepatitis B epidemics. See June 2014 private treatment record. (b.) If hepatitis B is service-connected in part (a) but cirrhosis is not, then the examiner should also opine on whether it is at least as likely as not (50 percent or greater probability) that the Veteran's cirrhosis is (i) proximately due to the now service-connected hepatitis B or (ii) has been aggravated (worsened beyond natural progression) by the now service-connected hepatitis B. The examiner is advised that inquiries (b)(i) and (b)(ii) require separate opinions: one for proximate causation and one for aggravation. Please note that it is not necessary that hepatitis B be service-connected, or even diagnosed, at the time cirrhosis is incurred to support secondary service connection, and reliance on this fact in support of a negative opinion will render it inadequate. A complete rationale must be provided for all opinions expressed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.