Citation Nr: 22012102 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-38 386 DATE: March 2, 2022 ORDER Entitlement to service connection for a heart disorder, including as due to exposure to herbicides, is denied. Entitlement to service connection for prostate disease, including as due to exposure to herbicides, is denied. FINDINGS OF FACT 1. The Veteran does not have ischemic heart disorder or other heart disorder as a result of service. 2. The Veteran does not have a diagnosis of prostate cancer, and there is no indication any other prostate disorder is a result of service. CONCLUSIONS OF LAW 1. The criteria for service connection for a heart disability have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1116A, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). 2. The criteria for service connection for a prostate disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1116, 1116A, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1968 to January 1970 and from August 1973 to August 1975. On July 1, 2019, the Secretary of Veterans Affairs directed the Board to stay adjudication of all cases which may be affected by the Blue Water Navy Vietnam Veterans Act of 2019 (the Act), until the effective date of the Act, January 1, 2020. The Act creates new statutory requirements for the adjudications of certain claims based on veterans' herbicide agent exposure in the offshore waters of the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975; in or near the Korean Demilitarized Zone during the period from September 1, 1967, to August 31, 1971; and in Thailand during the period from January 9, 1962, to May 7, 1975. As the Act is now in effect, the Board may proceed with adjudication. The Act specified that the presumption of exposure to herbicide agents in Vietnam applied to Veterans who served offshore of Vietnam if the location is not more than 12 nautical miles seaward of a line commencing on the southwestern demarcation line of the waters of Vietnam and Cambodia and intersecting at points specified in the Act. In a May 2020 VA Memorandum, VA conceded the Veteran's exposure to herbicides based on his nautical service in the offshore eligible waters. In July 2012, the AOJ denied service connection for a heart disability. The Veteran did not appeal this decision. Accordingly, the July 2012 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.201, 20.302, 20.1103. In January 2016, the Veteran requested that his claim for a heart disability be reopened. In this regard, generally, a claimant may reopen a finally adjudicated claim by submitting new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Effective January 1, 2020, under the Blue Water Navy Act of 2019, VA enumerated presumptive exposure to herbicides for veterans that have served offshore of the Republic of Vietnam during the period from January 9, 1962 to May 7, 1975 under certain, specified circumstances. As the Act creates a new basis of entitlement, new and material evidence is not required to reopen the Veteran's previously denied claim. See Spencer v. Brown, 4 Vet. App. 283, 288-89 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). Therefore, the claim for service connection for a heart disability will be reviewed on a de novo basis. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran who served in Vietnam between January 9, 1962 and May 7, 1975, is presumed to have been exposed to herbicides, such as Agent Orange, during such service. Certain specified diseases will be presumed service-connected due to herbicide exposure during service, if they manifest to a compensable degree at any time after service. 38 C.F.R. §§ 3.307 (a) (6), 3.309(e). With regard to the existence of a current disability, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. The existence of a current disability is the cornerstone of a claim for VA disability compensation. See 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303 (a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, more recently, the Federal Circuit Court provided a more definitive answer as to what constitutes a "disability" under VA law. The Federal Circuit held that where pain causes functional impairment, a "disability" for VA compensation purposes can exist, even if there is no underlying diagnosis or pathology. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Federal Circuit explained that a "disability" under 38 U.S.C. § 1110 refers to the functional impairment in earning capacity, not the underlying cause of said disability. Id. at 1363. The Federal Circuit also noted that 38 C.F.R. § 4.10 defines the term "functional impairment" as the inability of the body or a part of it "'to function under the ordinary conditions of daily life including employment'" Id. However, the Federal Circuit in Saunders limited its holding, by stating that a claimant's report of "subjective" pain in and of itself will not establish a current disability. Id. at 1367. In other words, a claimant cannot demonstrate service connection simply by asserting subjective pain. Id. Rather, a claimant will need to show that his or her pain reaches the level of functional impairment of earning capacity. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. The Court's holding in Saunders is supported by the public policy behind veterans' compensation i.e., to compensate veterans whose ability to earn a living is impaired as a result of their military service. Id. Recently, the Court has further held that the Federal Circuit's decision in the Saunders case is not limited to pain within an orthopedic context only. Rather, the definition of "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131 ) includes any "condition" that results in "functional impairment of earning capacity." Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). In yet another precedential decision issued a few weeks after Martinez-Bodon, the Court added that VA must make a factual determination as to whether a veteran's symptoms or manifestations rise to the level of a "functional impairment in earning capacity." In determining whether a veteran's impairment rises to a level affecting earning capacity, VA can consider manifestations of similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). The Rating Schedule may serve as a guide to determine whether certain symptoms may impair earning capacity; however, it is not dispositive. Id. at 16. The Saunders holding is also supported by VA regulation - 38 C.F.R. § 4.1 (the term disability is described in terms of "the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations"). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (citing with approval VA's definition of "disability" in 38 C.F.R. § 4.1 ). In short, according to Saunders and its recent progeny cases, the mere fact of a veteran reporting subjective symptoms, whether pain or otherwise, does not necessarily warrant a finding that he or she has met the current disability requirement for VA compensation purposes. Rather, a demonstration of current "functional impairment of earning capacity" is required to meet the standard of a current disability. 1. Heart disorder The Veteran is claiming service connection for heart condition claimed as coronary artery disease or ischemic heart disease as a presumptive condition due exposure to herbicides. As stated above, his exposure is presumed. The Veteran underwent a VA heart examination in July 2020. The examiner diagnosed atypical chest pain. The examiner further found that none of the Veteran's heart conditions qualify within the generally accepted medical definition of ischemic heart disease. In support of this diagnosis, the examiner opined: "The pts [patient's] activity is not solely due to the METS score so the LVED completed in 2016 renders a more accurate finding regarding cardiovascular manifestations alone." Upon review of the record, the Board finds that service connection is not warranted. The Veteran does not have a diagnosis of ischemic heart disease. See SSA Medical Records; see also VA treatment records. Therefore, presumptive service connection based on exposure to herbicides cannot be granted. Although the Veteran has atypical chest pain, there is no indication that the chest pain results in functional impairment so that it may be considered a disability. See Saunders, supra. The evidence does not show that there are any additional cardiac or heart for which service connection is warranted. While the Veteran believes he has a current diagnosis of heart disease subject to service connection due to his exposure to herbicides, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. As the probative evidence is against finding that the Veteran has a heart disorder as a result of service, the Veteran's claim of service connection is denied. 2. Prostate disorder The Veteran contends that he has a prostate condition as a presumptive condition due exposure to herbicides. As stated above, his exposure is presumed. A review of the treatment records does not show that the Veteran has been diagnosed with prostate cancer. He is presently service connected for varicocele. The Veteran was afforded a VA examination in July 2020. The examiner opined that "as per the Veteran, he does not have a diagnosis of prostate cancer now or ever in the past, only urological diagnosis at this time is BPH which is related to male aging and is not SC for agent orange." Upon review of the record, the Board finds that service connection is not warranted. The Veteran does not have a diagnosis of prostate cancer, nor does he allege one. Therefore, presumptive service connection based on exposure to herbicides cannot be granted. To the extent that the Veteran has BPH (benign prostate hypertrophy), the July 2020 VA examiner attributed the disorder to aging, and in no way indicated that there was a connection to the Veteran's military service. There are no additional prostate or urinary disorders for which service connection is warranted. Therefore, the Board concludes that the Veteran does not have a current diagnosis of prostate cancer, and any other prostate disorders identified have not been etiologically attributed to service. While the Veteran believes he has a current diagnosis of a prostate disorder subject to service connection due to his exposure to herbicides, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires specialized medical education. Jandreau, supra. Consequently, the Board gives more probative weight to the competent medical evidence. As the probative evidence is against finding that the Veteran has a prostate disorder as a result of service, the Veteran's claim of service connection is denied. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shana Z. Siesser, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED