Citation Nr: 21042000 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 10-31 981A DATE: July 11, 2021 ORDER Service connection for hypothyroidism is granted. Service connection for a heart disorder is denied. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents during service. 2. The Veteran's hypothyroidism is related to herbicide exposure in service. 3. The Veteran's heart disorder is not related to service or service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for hypothyroidism are 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 service connection for a heart disorder, to include as secondary to service-connected PTSD with MDD are not met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1966 to August 1970. The case is on appeal from a September 2009 rating decision. In February 2018, the Veteran testified at a Board hearing. The case was most recently before the Board in September 2020. At that time, the Board remanded the claims for further development and adjudication. Following the most recent October 2020 supplemental statement of the case (SSOC), and subsequent certification of the appeal to the Board under the Legacy appeal system, in March 2021, the Veteran submitted a VA Form 20-0995 to have his appeal reviewed under the Supplemental Claim option pursuant to the Appeals Modernization Act (AMA). See 38 C.F.R. § 3.2501. Notwithstanding, as the VA form 20-0995 to opt-in into the AMA system was received after 60 days from the October 2020 SSOC, the opt-in under the AMA system was untimely and the Board will proceed to adjudicate the claims under the Legacy system. See 38 C.F.R. §§ 3.2400, 19.52(b)(1). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(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." Saunders v. Wilkie, 886 F.3d 1356, 1361(Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167(Fed. Cir. 2004)). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases, to include ischemic heart disease, are presumed to be service connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of the disease during service. 38 U.S.C. § 1116(a); 38 C.F.R. § 3.309(e). VA laws and regulations provide that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. See 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). The National Defense Act of 2020, Public Law (PL) 116-283 (2020), which went into effect on January 1, 2021, amended the provisions set forth in 38 U.S.C. § 1116 to include new disorders, such as hypothyroidism, to the list of the diseases presumptively associated with exposure to herbicide agents. Amendments to the regulations have yet to be promulgated. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis 1. Service connection for hypothyroidism. The Veteran contends that his hypothyroidism is attributed to his exposure to herbicide agents, such as Agent Orange, while aboard the USS Ranger off the coast of Vietnam in support of operations during the Vietnam War. The Veteran alternatively contends that his hypothyroidism could be potentially attributed to his service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD). Service personnel records (SPRs) reflect that the Veteran served aboard the USS Ranger between June 1969 to August 1970. Logbooks locations received in January 2020, show that the USS Ranger served offshore of the Republic of Vietnam within 12 nautical miles. Furthermore, the Veteran is presumed to have been exposed to herbicides agents during such service as the Board determined this fact in the last decision. The Board notes the Veteran has a current diagnosis of hypothyroidism which was diagnosed in June 2006. See June 2009 VA Triage Primary Care note; see also October 2020 VA examination. Thus, the current disability element of the claim has been established. Pursuant to the Board's September 2020 remand, the Veteran was afforded a VA examination in October 2020, in connection with this claim. The VA examiner opined that the claimed disability was less likely than not incurred in or caused by the Veteran's military service. The examiner concluded that besides there is no evidence of a diagnosis of hypothyroidism during active duty service, and despite former VA Secretary David Shulkin recommended to add hypothyroidism to the VA list of illnesses presumptively caused by exposure to herbicides used during the Vietnam War, there is no VA directive to confirm his recommendation and, therefore, he was unable to render an opinion regarding a nexus between the Veteran's herbicides exposure and his hypothyroidism. Nevertheless, while in remand status, 38 U.S.C. § 1116 was amended and hypothyroidism was added to those diseases listed as presumptively linked to exposure to herbicide agents. Hence, as hypothyroidism is now a disability listed as presumptively due to herbicide exposure, the Board finds that service connection for hypothyroidism is warranted. For the limited purpose of resolving this appeal, the Board assumes that the disability has manifested to at least a degree of 10 percent. 38 C.F.R. § 3.307(a)(6)(ii). Moreover, there is no affirmative evidence to the contrary. Accordingly, service connection for hypothyroidism is warranted. 2. Service connection for a heart disorder, to include as secondary to service-connected PTSD with MDD. The Veteran contends that service connection for a heart disorder is warranted either as directly related to his military service and/or his presumed exposure to herbicide agents; or as secondary to his service-connected PTSD with MDD. The Board notes that the Veteran has been diagnosed with pulmonary valve regurgitation. See August 2019 and October 2020 VA examinations and opinions. As such, the current disability element of the claim has been established. As noted in the September 2020 Board decision, while certain heart conditions are among the listed disabilities under 38 C.F.R. § 3.309(e) as presumptively linked to exposure to certain herbicide agents, pulmonary valve regurgitation, the currently diagnosed disability, is not. Thus, the presumption afforded under this provision cannot provide a basis for a grant of service connection for this claim as a diagnosis of IHD is a cornerstone element for service connection for service connection to presumed herbicide exposure pursuant 38 C.F.R. § 3.309(e) as that is the type of heart disease listed. However, such presumptive provisions do not preclude the Veteran from establishing service connection on an alternate basis. See Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994). Thus, the question for the Board is whether service connection is warranted for the claimed disability either on a direct basis under 38 C.F.R. § 3.303, or under a secondary basis as set forth by 38 C.F.R. § 3.310. Service treatment records (STRs) do not show nor account for treatment, complaints, or reports of a heart or cardiopulmonary disorders during service. The Veteran did not report any heart or cardiopulmonary problems during his August 1970 separation medical examination. Post-service treatment records reflect that in May 2004, the Veteran received treatment for a heart murmur, which the private provider described as a "very simple ejection fraction. See May 2004 Southwest Heart progress notes. The Veteran underwent an echocardiography which revealed a preserved left ventricular function and a slight atrial enlargement, however, with a normal gradient across the valve. The Veteran was diagnosed with mild mitral, tricuspid, and aortic valves regurgitation. In April 2009, the Veteran underwent a Stress Test (treadmill test). The Veteran exercised for a total time of 6 minutes and, 16 seconds and achieving 92 percent of his maximum predicted heart rate for his age without arrhythmias and nothing suggestive of angina. The private provider noted that the test resulted negative for evidence of cardiac ischemia with excellent exercise tolerance with a somewhat hypertensive response to blood pressure. See April 22, 2009 progress notes. In April 2012, the Veteran underwent a Transthoracic Echocardiogram which revealed that his left ventricular size, wall thickness and systolic function are normal. The results, however, revealed some mild aortic valve regurgitation. The Board notes that the private providers in charge of the Veteran's care did not comment on the etiology of the recorded valves regurgitation. VA treatment records dated from August 2000 to October 2020 reflects that the Veteran receives regular mental health treatment for his service-connected PTSD with MDD. Nevertheless, the medical records do not indicate nor suggests a heart disability attributed to his mental health disorders. Pursuant to the Board's July 2018 remand, the Veteran was afforded VA examination in August 2019 in connection with this claim. The examination report confirms a diagnosis of mild non-rheumatic pulmonic valve regurgitation. The examiner indicated that the listed heart condition does not qualify within the generally accepted medical definition of ischemic heart disease. With respect to a direct nexus theory, the examiner noted that STRs do not account for signs or symptoms for a related heart condition and, therefore, a nexus could be established. With respect to the alternate theory on a secondary basis, the VA examiner noted that there is no established link between PTSD with MDD and the Veteran's subsequent development of pulmonary insufficiency/regurgitation. To that effect, the examiner indicated that there is no evidence that pulmonary regurgitation has been either caused or aggravated by his PTSD with MDD for which it is less likely than not that the Veteran's mild pulmonary regurgitation/insufficiency has been caused or aggravated by his service-connected PTSD with MDD. In its September 2020 decision, the Board remanded the present claim to obtain an opinion addressing the Veteran's July 2019 newly raised contention that his heart disorder should be also considered as potentially related to his presumptive exposure to herbicide agents. Pursuant to the Board's September 2020 remand, A VA opinion was obtained in October 2020. The VA examiner indicated that upon review of the Veteran's claims file and medical history, not only there is no evidence of a prior or current diagnosis of IHD, but that the evidence failed to reflect an onset of pulmonic regurgitation, his currently diagnosed disability, during service. She further noted that after review of scholarly literature, there is no evidence upon which one can rely on to determine that the Veteran's pulmonic regurgitation can be attributed to his service, to include his presumed exposure to herbicide agents, such as Agent Orange. The Board acknowledges the Veteran believes he has a heart disorder, or a cardiopulmonary disorder that is the result of his military service, to include his presumed exposure to herbicide agents, or as secondary to his PTSD with MDD. Nevertheless, the Board finds that the evidence does not show that the Veteran has IHD and, moreover, that any other cardiopulmonary disorder that the Veteran has been diagnosed with had its onset during, or is otherwise related to service, to include his presumed exposure to herbicide agents, or alternatively as secondary to his service-connected PTSD with MDD. (Continued on the next page) The Board accords probative weight to the August 2019 VA examination and opinion and to the October 2020 VA opinion and finds them to be the most persuasive evidence as to the nexus elements of the claim. As for the August 2019 VA opinion, the Board notes the examiner has considered all of the pertinent evidence of record, to include his STRs, post-service medical history and treatment records, and the onset of manifestations of the claimed disability. With respect to the October 2020 VA opinion addressing the Veteran's statements as to the potential link between his presumed herbicides exposure to his claimed pulmonic regurgitation, the Board notes that the VA examiner attests to have consulted medical research pertaining to diseases due to herbicides exposure, and the Veteran's lay statements to provide a persuasive opinion explaining the lack of a relationship of any other heart disease or cardiopulmonary disorder the Veteran has been diagnosed with. See Nieves-Rodriguez, 22 Vet. App. 295 at 302-03. Thus, in the present claim the nexus element is not established for service connection for any other heart disease or cardiopulmonary disorder either on a direct or a secondary basis. As the preponderance of the evidence is against the claim either on a presumptive, direct, or secondary basis, the reasonable doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, service connection for a heart disorder is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board William Pagan 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.