Citation Nr: 22012234 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 14-40 851 DATE: March 3, 2022 ORDER Entitlement to service connection for a heart disorder, to include arteriosclerotic heart disorder, coronary artery disease (CAD), atrial fibrillation, and angina, is denied. FINDING OF FACT The evidence persuasively weighs against finding that the Veteran's heart disorder began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease, to include herbicide exposure. CONCLUSION OF LAW The criteria for service connection for a heart disorder are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 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 in the United States Army from July 1966 to December 1973, to include service in the Republic of Vietnam. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in September 2018. A transcript of that hearing has been associated with the claims file. This issue was remanded by the Board in April 2019 and May 2021 for further development. It has since returned to the Board for appellate review. Entitlement to service connection for a heart disorder, to include arteriosclerotic heart disorder, CAD, atrial fibrillation, and angina, is denied. The Veteran assets that he is entitled to service connection for a heart disorder on a presumptive and direct basis. However, as outlined below, the evidence persuasively weighs against finding that the Veteran's heart disorder manifested during, within the year following, or as a result of active service, to include exposure to herbicides. As such, service connection cannot be established on a presumptive or direct basis. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.§ 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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). The Veteran has provided an alternative theory of entitlement to service connection for his heart disorder, which is that his heart disorder is due to herbicide exposure during service in the Republic of Vietnam. The Board concedes that the Veteran served in the Republic of Vietnam and was exposed to herbicides. The law provides that, if a veteran was exposed to an herbicide agent during service, certain listed diseases shall be service connected if the requirements of 38 U.S.C.§ 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. The list of diseases afforded this presumption was expanded by August 2010 amendment to 38 C.F.R. § 3.309(e) to include chronic B-cell leukemias, Parkinson's disease, and ischemic heart disease. Ischemic heart disease includes, but is not limited to, "acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina." This amendment is applicable to claims received by VA on or after August 31, 2010, and to claims pending before VA on that date, as well as certain previously denied claims. See 75 Fed. Reg. 52,202 (Aug. 31, 2010). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert. v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's service treatment records (STRs) are silent for complaints, treatment, or diagnosis of a heart disorder. The December 1973 separation examination indicated the Veteran's heart is normal. In a February 2007 VA treatment record, the Veteran complained of chest pain. The medical provider found the Veteran to present a stable angina. The medical provider found the Veteran in need of procedures for the heart disorder. An April 2007 VA treatment record stated that the Veteran had an inaccurate diagnosis of coronary artery disease (CAD) and congestive heart failure (CHF). In a June 2011 VA treatment record, the medical provider found the Veteran to have atrial fibrillation. The prior medical history lists the Veteran has having unstable angina, coronary arteriosclerosis, atrial fibrillation. In a February 2012 VA treatment record, the medical provider assessed the Veteran to have CAD that has a chronic stable angina with no recent change. In an October 2012 VA ischemic heart disease examination, the examiner found the Veteran to not have ischemic heart disease (IHD). The examiner indicated the Veteran has percutaneous coronary intervention. In an October 2012 addendum VA IHD examination, the examiner stated that after review of the medical evidence, there is no medical evidence of IHD. The examiner stated that the July 2012 clinical note did not establish any diagnosis of IHD. The examiner stated that the documentation of a clinical reminder completion at the bottom of the note is not a reference to or evidence of IHD or diagnosis of such. In a November 2012 notice of disagreement, the Veteran stated that his VA treatment records show a diagnosis of coronary arteriosclerosis in June 2011, September 2011, February 2012, and July 2012. The Veteran stated he was also diagnosed with CAD in September 2011 and February 2012. In an April 2013 VA treatment record, the medical provider came to a final diagnosis of non-obstructive CAD. In an August 2013 IHD disability benefits questionnaire (DBQ), the medical provider stated the Veteran has atrial fibrillation which impacts his ability to work. In a June 2014 VA treatment record, the medical provider stated the Veteran has a history of nonobstructive CAD and atrial fibrillation. On the November 2014 substantive appeal, the Veteran stated he has been diagnosed with coronary arteriosclerosis. The Veteran asserts that his heart disorder is subject to the claim of IHD and entitles him to presumptive service connection. In December 2017 and January 2018 VA treatment records, the medical provider indicated the Veteran has CAD. At the September 2018 Board hearing, the Veteran testified that he has not been diagnosed with IHD. Board Hearing Transcript (T.) at 4. The Veteran clarified there was a diagnosis of coronary atherosclerosis in 2011, which is part of IHD. Id. He stated he experienced chest pain and shortness of breath for several years. Id. In a March 2019 VA treatment record, the medical provider stated the Veteran has a diagnosis of non-obstructive CAD and atrial fibrillation. In a November 2019 VA heart disorder examination, the examiner indicated the Veteran has diagnoses of arteriosclerotic (arterial) heart disease, stable angina, supraventricular arrhythmia, and hypertensive heart disease. The examiner indicated that the Veteran's heart disorders do not qualify within the generally accepted medical definition of IHD. The November 2019 VA examiner remarked that a review of the record does not show any documentation of ongoing IHD in the Veteran. The examiner stated that the Veteran's atherosclerotic heart disease is a very common issue in males. The examiner stated that it is not uncommon to see some degree of non-obstructive atherosclerotic heart disease or coronary disease in even younger populations. The examiner stated there is a history of chronic atrial fibrillation, hypertension, hypertensive heart disease, and intermittent stable angina. The examiner again found that there is no evidence of a diagnosis of IHD. The examiner stated that the Veteran's atherosclerotic heart disease with non-obstructive coronary disease is related to cholesterol plaque buildup. Also, the examiner noted the Veteran has a family history of heart disease. The November 2019 VA examiner stated that considering the Veteran's military service and service in the Republic of Vietnam with herbicide exposure, there is no history of heart symptoms in the STRs. And in reviewing the Veteran's records, the examiner again concluded that there is no IHD. The examiner concluded that it is less likely than not that the Veteran's heart disorders are directly relatable to his active-duty military service, to include herbicide exposure. The examiner opined that the Veteran's atherosclerotic heart disease with chronic atrial fibrillation, hypertensive heart disease, and angina were less likely as not incurred in or caused by active military service, including any herbicide exposure. In a September 2020 VA treatment record, the Veteran was seen for permanent atrial fibrillation. The medical provider stated that a pacemaker has been implanted. In an October 2020 VA treatment record, the medical provider found the testing to show no evidence of ischemia. On the September 2021 VA heart examination, the examiner indicated the Veteran has diagnoses of atherosclerotic cardiovascular disease and pacemaker placement due to atrial fibrillation with symptomatic bradycardia. The examiner noted the Veteran's coronary atherosclerosis is due to lifestyle. In a September 2021 VA medical opinion, the examiner opined that the Veteran's heart disorders are less likely than not caused by service. The examiner reasoned that the Veteran's atrial fibrillation was diagnosed in March 2012, many years after separation from service. The examiner stated the Veteran then developed symptomatic bradycardia or sick sinus syndrome which required the placement of a pacemaker. Also, the Veteran has been diagnosed with coronary atherosclerosis (non-obstructive CAD). The examiner stated the medical records lack sufficient information to support a finding that his cardiac disabilities have been incurred during the period of active service. Based on the foregoing, the Board finds, first, that there is no evidence that the Veteran's heart disorders were manifested in service or to a compensable degree in the first year following his separation from active duty. The first indication of a heart disorder occurred in 2007, over 30 years after separation from service. Consequently, service connection for a heart disorder on the basis that such became manifest in service and persisted is not warranted. Notably, the Veteran has not submitted competent evidence to show that he has suffered from a heart disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Thus, service connection on a presumptive basis is not warranted. There is also no evidence that the Veteran's heart disorder is otherwise related to his service. The Veteran's post-service treatment records are silent for an opinion relating his heart disorders to service. Also, the November 2019 and September 2021 VA opinions specifically found that the Veteran's heart disorders are not caused by service. As these opinions were based on an interview and examination of the Veteran and review of the claims file, the Board finds them persuasive. As to the assertion of herbicide exposure, the Veteran's heart disorders are not listed among the diseases enumerated under 38 C.F.R. § 3.309(e); consequently, the herbicide agent presumptive provisions of 38 U.S.C. § 1116 do not apply. In that connection, the October 2012 VA examiner, November 2019 VA examiner, and October 2020 VA treatment record all made specific findings that the Veteran's heart disorders are not an IHD. Therefore, the Veteran's heart disorder cannot be service connected on a presumptive basis due to herbicide exposure. The United States Court of Appeals for the Federal Circuit has nevertheless 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 Agent Orange is not precluded from establishing service connection for such disability as due to Agent Orange exposure with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Here, however, there is, as previously discussed, no competent evidence in the record of a possible nexus between the Veteran's heart disorders and his service, to include Agent Orange exposure. The Veteran's own statements relating his heart disorder to service, including to his conceded herbicide exposure, are not competent evidence, as he is a layperson and lacks the training to opine regarding medical etiology. Specifically, the Veteran lacks the training to opine whether a heart disorder (in the absence of credible evidence of continuity, as here), is related to service or a remote incident or exposure in service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, a heart disorder is a disease of the cardiovascular system, and the record does not show that the Veteran has training or eduction in this medical field, lay evidence of etiology is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007. Thus, the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for a heart disorder. Accordingly, the claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.