Citation Nr: 21031553 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-44 961 DATE: May 24, 2021 ORDER Service connection for a heart disorder, to include as secondary to herbicide exposure, is denied. FINDING OF FACT The Veteran's diagnosed supraventricular tachycardia is less likely than not related to active duty service, to include herbicide exposure. CONCLUSION OF LAW The criteria for entitlement to service connection for a heart disorder, to include as secondary to herbicide exposure, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1969. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish service connection, the evidence must show competent evidence of (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, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process or relatively close thereto can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For purposes of establishing service connection for a disability resulting from exposure to herbicide agents, a veteran who had active service in the Republic of Vietnam during the Vietnam Era, beginning on January 9, 1962, and ending on May 7, 1975, will be presumed to have been exposed to an herbicide agent during that service, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f); 38 C.F.R. §§ 3.307(a), 3.309(e). Presumptive herbicide exposure requires a presence on the ground or in the inland waterways of the country; service on deep-water offshore vessels is insufficient to trigger the presumption. 38 C.F.R. § 3.307(a)(6)(iii); Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert. denied, 129 S. Ct. 1002 (2009). The applicable criteria provide that a disease associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e), will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). VA has determined that there is no positive association between exposure to herbicide agents and any other condition for which it has not specifically been determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-346 (1994); see also 61 Fed. Reg. 57586 -57589 (1996). As the Veteran's heart disorder (supraventricular tachycardia) is not listed among the diseases enumerated under 38 C.F.R. § § 3.309(e), the herbicide agents presumptive provisions of 38 C.F.R. § 3.307 do not apply as to that disability. Nevertheless, the United States Court of Appeals for the Federal Circuit has determined that a claimant who suffers from a disability that is not listed among those for which presumptive service is afforded based on exposure to herbicide agents is not precluded from establishing service connection for such disability as due to herbicide agent exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). With an approximate balance of positive and negative evidence on a relevant issue, VA resolves reasonable doubt in the claimant's favor. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran seeks service connection for a heart disorder. Significantly, however, while there is evidence of a current diagnosis for supraventricular tachycardia the evidence does not show that this disorder was incurred during active duty service and/or was otherwise related to active duty service. In that regard, the Veteran's service treatment records (STRS), to include his April 1969 separate examination, are silent for any complaints, findings, treatment, or diagnoses related to a heart disorder. Post-service, his private medical records reflect that he was first diagnosed with supraventricular tachycardia (SVT) in October 1997 after experiencing palpitations and reporting to a health center. He has been treated privately for SVT since then. See January 1998, July 2000, and June 2019 Private Medical Records. Notably, neither the Veteran, nor his representative, has alleged (nor have they submitted competent evidence to show) that his heart disorder had its onset in service or that he suffered from this disorder continuously since service. See 38 C.F.R. § 3.303 (b). Consequently, service connection for a heart disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. The Veteran, instead, contends that his heart disorder is etiologically related to his in-service exposure to herbicide agents. His exposure to herbicides during service in the Republic of Vietnam is conceded. See March 2019 Board Remand. Although the Veteran's heart disorder is not listed as a presumptive disability enumerated under 38 C.F.R. § 3.309(e), the Board must, nevertheless, analyze whether the evidence establishes direct service connection as due to herbicide agent exposure. See Combee, 34 F.3d at 1042. In November 2019, the RO procured a VA examination and medical opinion to address the question of whether the Veteran's heart disorder was related to in-service herbicide agent exposure. The examiner diagnosed the Veteran with SVT, noting the first diagnosis of SVT and subsequent treatment began in October 1997. The examiner determined that the Veteran did not have diagnoses of ventricular tachycardia or ischemic heart disease. The examiner concluded the Veteran's diagnosed SVT is less likely than not related to service, to include herbicide exposure. The examiner noted the absence of reported SVT in the Veteran's service treatment records and opined that he knew of no expert medical literature that shows herbicide exposure causes SVT at a likelihood of 50 percent or greater. In this case, the November 2019 VA examiner's opinion is the best evidence of record regarding the nature and etiology of the Veteran's SVT, determining that it is less likely than not related to active duty service or herbicide exposure. There are no other opinions of record related to this issue. The Board acknowledges the Veteran's non-specific allegations that he has ischemic heart disease and that his heart disorder was related to his in-service exposure to herbicide agents. See September 2016 VA Form 9. As a lay person, however, the Veteran is not competent to provide a diagnosis and/or a medical opinion as to the relationship between any heart disorder and in-service exposures. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, in the absence of medical evidence, the Veteran's unsubstantiated and conclusory statements are not sufficient to establish a nexus. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Furthermore, as indicated above, the November 2019 VA examiner competently determined that there was no evidence of ischemic heart disease. As such, the Board affords these contentions no probative value. Based on the foregoing, the Board finds that the preponderance of the evidence is against a finding that the Veteran's heart disorder manifested during active service or within one year of service or was otherwise related to active duty service, to include herbicide agent exposure therein. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Accordingly, entitlement to service connection for a heart disorder is denied. PAUL E. METZNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.