Citation Nr: 21032287 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-35 964A DATE: May 26, 2021 ORDER Service connection for a right hip disability is granted. Service connection for supraventricular arrhythmia (SVT) is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the evidence supports a finding that his right hip disability is due to his active duty service. 2. The weight of the evidence is against finding that the Veteran's SVT is due to his active duty service, to include as a result of his presumed exposure to herbicide agents therein. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability have been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for SVT have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to July 1971. This appeal was previously before the Board in November 2018. The Board remanded the service connection claims for a right hip disability, SVT, and a skin disability. Specifically, the Board found that VA examinations were necessary so that medical opinions could be provided regarding the etiology of the respective disabilities. The Veteran was afforded VA examinations for his hips, skin, and heart in February 2019. The requested medical opinions regarding the etiology of the Veteran's right hip disability, his heart condition, and his skin condition were provided. As such, there has been substantial compliance with the November 2018 Board remand directives, as to all of the service connection claims on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that based on the February 2020 VA examiner's positive nexus opinion regarding the Veteran's service connection claim for a skin condition, a June 2020 rating decision granted service connection for laceration scarring on the anterior upper thorax. The grant of service connection for laceration scarring is considered a full grant of benefits sought on appeal and the service connection claim for a skin condition is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Service Connection 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). If a disease listed in 38 C.F.R. § 3.309 (a) is shown to be chronic in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). 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. Id. However, if chronicity in service is not established or where the diagnosis of chronicity may be legitimately questioned, a showing of continuity of symptoms after discharge is required to support the claim. Id. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. A claimant "can benefit from continuity of symptomatology to establish service connection in the ultimate sense, but only if [the] chronic disease is one listed in § 3.309 (a)." Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). 1. Service connection for a right hip disability is granted. The Veteran asserts that the onset of his right hip disability was during his active duty service. Specifically, he asserts that while serving in Vietnam, the Viet Cong initiated a rocket attack on his location and that he was trampled during the attack. See Notice of Disagreement (NOD) received January 21, 2015. He also stated that he has lived with right hip pain ever since. Id. A review of the Veteran's service treatment records (STRs) does not show any complaints, treatment, or diagnosis for any right hip conditions. For example, his July 1971 separation examination showed a normal clinical evaluation and the Veteran reported that his condition was, "good." However, VA received written correspondence from the Veteran in February 2015, where he reported that he was treated by a medic at the scene for a right hip injury following the rocket attack. However, he denied ever seeking any follow-up treatment from a doctor. Based on the Veteran's credible report that he was injured during his service in Vietnam, a VA examination was ordered to provide the Veteran with an etiology opinion regarding his right hip disability. The Veteran was afforded a VA examination in February 2019. The Veteran reported that he has experienced right hip pain since his military service. After an in-person examination and a review of the Veteran's claims file, the examiner noted that he was diagnosed with right hip osteoarthritis and right trochanteric pain syndrome. However, the examiner provided a negative nexus opinion. The examiner explained that a review of the STRs and the post-service medical records were silent for a chronic right hip condition, until 2014. Further, there was a lack of evidence demonstrating a continuity of symptoms from the time of separation in 1971, to the date of diagnosis for a right hip disability in 2014. After a careful review of the Veteran's post-service medical records, the Board disagrees with the findings of the February 2019 VA examiner. The Veteran provided a private treatment record from April 1989, in which the attending physician noted that the Veteran had an over 10-year history of right hip pain. The physician noted a motorcycle accident in 1981, but also noted that he had experienced right hip pain prior to the accident. The physician reported that the Veteran had been seen multiple times in this clinic and treated conservatively for his right hip condition. The physician reported that the etiology of his right hip pain was unclear because the condition was so long-standing. A bone scan showed normal results; but the physician reported that it could be very early osteoarthritis. The law provides that in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C. § 1154(b). This is known as the combat presumption. Here, the Veteran was not awarded any medals that would be indicative of combat exposure, but his DD-214 does list his MOS as a "combat" engineer. Moreover, even if the combat presumption did not apply, U.S.C. § 1154(a) still mandates that consideration be given to the places, types, and circumstances of a Veteran's service. Here, it is undisputed that the Veteran served in Vietnam as a combat engineer, making it quite plausible that he came under rocket or mortar attacks, as he has described. Here, the Board has weighed the probative evidence of record and finds that it is in approximate balance with respect to establishing service connection by way of continuity of symptomatology. See 38 C.F.R. § 3.303 (b). The Veteran has acknowledged that his STRs do not contain any reports of right hip pain, but he stated that he was treated in the field and that nothing was documented. Therefore, continuity of symptomatology must be established. See Id. The Board notes that the Veteran is competent to relay what he has experienced. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Veteran has reported that his right hip was injured during a rocket attack initiated by the Viet Cong and that he was treated by a medic in the field, with no documentation in the STRs; and has consistently reported that he has lived with right hip pain since his military service. Here, the Board finds that the Veteran's report of an in-service injury, the onset of his right hip pain in-service, his reports of continuity of symptomatology are all deemed to be competent evidence. Further, the contemporaneous evidence of record supports the Veteran's assertion that he has had long-standing right hip pain. The Board acknowledges that the April 1989 private treatment record that noted an over-10-year history of right hip pain, does not specifically state that he has experienced right hip pain since his separation from the military in 1971. However, the physician did note long-standing right hip pain and that he had right hip pain prior to a 1981 motorcycle accident, and there is no further indication of any other intervening factors that may have caused his current right hip disability. The Board also notes that the February 2019 VA examiner's finding that the Veteran first showed a right hip condition in 2014 has been found to be an inaccurate reflection of the evidence of record. Based on the VA examiner's reliance on an inaccurate factual premise, the Board affords the negative nexus opinion little probative weight. Here, the Board resolves reasonable doubt in favor of the Veteran; he has credibly reported that the onset of his right hip pain was during his active duty service and has experienced pain ever since. Further, the April 1989 private treatment note indicated that he had long-standing right hip pain, even prior to a 1981 accident, which shows that he had a right hip condition many years prior to 2014. The Board finds his statements credible, based on the evidence of record as described above. The Board finds no reason to believe otherwise. In light of the in-service trauma to the right hip and the Veteran's competent and credible accounts regarding the onset and continued symptomatology of his right hip pain, the current diagnosis of osteoarthritis and right trochanteric pain syndrome, the Board affords the Veteran the benefit of the doubt and finds that service connection is warranted. In resolving all reasonable doubt in the Veteran's favor, service connection for a right hip disability, is granted. 2. Service connection for SVT is denied. The Veteran asserts that his heart condition is due to his in-service exposure to herbicide agents. Service connection may be established on a presumptive basis for a veteran who has been exposed to an herbicide agent during active military service for specified diseases. Service connection is warranted even if these disorders were not shown during active duty. See 38 C.F.R. § 3.309 (e). Veterans who, during active service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to a herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. "Service in Vietnam" means actual service in the country of Vietnam during the specified period; service in the waters offshore or service in other locations during the Vietnam period is considered service "in Vietnam" if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.313 (a); see Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). VA interprets 38 C.F.R.§3.307 (a)(6)(iii) as requiring a service member's presence at some point on the landmass or inland waters of Vietnam in order to benefit from the regulation's presumption, and that interpretation has been upheld by the Federal Circuit. See Haas, 525 F.3d at 1193-1194. Here, VA has previously conceded that the Veteran had service in Vietnam and is presumed to have been exposed to herbicide agents. See Rating Decision dated October 23, 2014. The Board notes that the Veteran's STRs do not record any specific injuries or diseases related to the Veteran's heart. His July 1971 separation examination showed a normal clinical evaluation of the heart and the Veteran reported being in good condition. Further, the first signs of a heart condition appeared in April 1999, when his private physician noted that the shortness of breath and chest pains the Veteran was experiencing could be signs of SVT. He was formally diagnosed with SVT in November 1999, following an electrocardiogram (EKG). The Board notes that there is no evidence of record to the contrary and the Veteran has not reported that the onset of his heart condition was during his active duty service, or described symptoms that related back to his active duty service. As such, the evidence does on show an in-service occurrence of any heart disabilities, nor did any manifest within a year of his sporation from the military. The Veteran is not entitled to service connection for SVT on a presumptive basis because the condition is not listed as one of the chronic diseases subject to presumptive service connection under 38 C.F.R. § 3.309 (a). In addition, there is no medical evidence showing the SVT manifested within the year of the Veteran's separation from service, or evidence any continuity of symptomatology. The Veteran was afforded a VA examination in February 2019. After an in-person examination and a review of the Veteran's claims file, the examiner noted that the only heart condition he was diagnosed with was SVT. The Veteran reported that he was diagnosed with SVT in 1999, by EKG. The examiner indicated that none of the Veteran's heart conditions qualify within the generally accepted medical definition of ischemic heart disease (IHD). After the in-person examination and a review of the claims file, the examiner provided a negative nexus opinion. The examiner noted that IHD and related heart conditions such as CAD and ASCVD are disorders for which presumptive service connection is warranted for exposure to herbicide agents. However, the Veteran was not shown to have a diagnosis for IHD. Further, the examiner reported that the Veteran's diagnosis of SVT was made about 25 years after his separation from the military and the STRs were negative for any heart conditions, which was insufficient to establish a medical nexus between his active duty service and his current heart condition. Here, because the Veteran's heart condition is not considered to be IHD, he is not entitled to presumptive service connection under 38 C.F.R. § 3.309 (a). VA's Secretary has determined that a presumption of service connection based on exposure to herbicides is not warranted for any condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395 (2007). Notwithstanding the provisions relating to presumptive service connection, which arose out of the Veteran's Dioxin and Radiation Exposure Compensation Standards Act, Pub. L. No. 98-542, § 5, 98 Stat. 2,725, 2,727-29 (1984), and the Agent Orange Act of 1991, Pub. L. No. 102-4, § 2, 105 Stat. 11 (1991), the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); 38 C.F.R. § 3.303 (d) (2011). Here, the Board recognizes the Veteran's numerous correspondences with VA, that he believes that VA does not believe his statements and assertions, or even that he served in Vietnam. The Board would like to express that it hears his concerns and concedes that he had service in Vietnam (which is shown by his DD-214). Further, the Board finds the Veteran's statements and assertions that he served in Vietnam and was exposed to herbicide agents to be credible. However, the Veteran's current heart condition, SVT, is not a form heart disease that is subject to presumptive service connection. This means that the Veteran must establish that his SVT began in or was otherwise caused by the Veteran's active military service. Regarding direct service connection, there is no objective and/or competent evidence of record that links the Veteran's SVT to his active service. His STRs do not show a diagnosis of any heart condition during his service. Furthermore, the Veteran had normal in-service examinations throughout his military career, which contained no evidence of a heart condition. As described, the record contains no diagnosis of SVT, or any other heart condition, either in service or within one year after service, which would preclude service connection on the basis of continuity of symptomatology or on any presumptive basis. Here, the Veteran was diagnosed with a heart condition, SVT, in 1999, about 25 years after his separation from the military. The Veteran has not made any assertions to the contrary, nor has he described a continuity of symptomatology regarding his heart condition. There is also no medical evidence linking the Veteran's SVT to his active service, and he has not submitted any medical opinion that even suggests a relationship between his heart condition and his active service. See Shedden, 381 F.3d 1163, 1167. As such, there is no basis for service connection on a direct or presumptive basis. The Board notes that VA received the Veteran's representative's Appellate Brief in August 2020. However, the representative did not advance any alternative theories to entitlement, nor did the representative point to any competent evidence or argument that would warrant service connection. Instead, the representative directed the Board's attention to arguments previously advanced. Here, the Board has explained why service connection is not warranted, based on the previously advanced arguments and evidence of record. (Continued on the next page) Although the Board is sympathetic to the Veteran's claim, and concedes that he was exposed to Agent Orange, the Board cannot grant service connection because there is no competent evidence linking his exposure to herbicide agents to his SVT diagnosis. The only indication that the Veteran's SVT is due to his active duty service, are lay assertions he made. However, a medical opinion requires medical expertise, and that determination cannot simply be made by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to provide a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Board affords the February 2019 VA examiner's medical opinion great probative weight because he had a chance to examine the Veteran in-person and reviewed the Veteran's claims before rendering their opinion. Conversely, the Board affords the Veteran's lay opinion little probative weight, as he lacks the requisite medical training. Id. Accordingly, service connection for SVT is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.