Citation Nr: 1529012 Decision Date: 07/07/15 Archive Date: 07/15/15 DOCKET NO. 13-21 643A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for coronary artery disease (claimed as ischemic heart disease), to include as secondary to herbicide exposure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran requested a hearing before the Board on his August 2013 substantive appeal. However, in an October 2013 statement, the Veteran indicated that he no longer desired a hearing. As such, his hearing request is withdrawn. 38 C.F.R. § 20.704 (2014). FINDINGS OF FACT 1. The Veteran did not serve in the Republic of the Vietnam during his active service, and exposure to herbicides during his active duty service is not otherwise shown. 2. Coronary artery disease was not manifested during the Veteran's active duty service or for many years thereafter, and is not otherwise related to his active duty service. CONCLUSION OF LAW The criteria for service connection for coronary artery disease have not been met. 38 U.S.C.A. §§ 1101, 1110, 1154(a), 5103, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Procedural Duties VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claim for service connection. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). A. Duty to Notify When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Compliance with the first element requires notice of the five service connection elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. See 38 U.S.C.A. § 5103(a); see also Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). A November 2012 letter fully satisfied the duty to notify provisions prior to initial adjudication of the Veteran's claim in February 2013. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). B. Duty to Assist VA's duty to assist in obtaining records has been satisfied. The Veteran's service treatment records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran's Social Security Administration records have been associated with the file. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. A medical examination or opinion is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient competent medical evidence to decide the case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c); McLendon v. Nicholson, 20 Vet. App. 79, 81-82 (2006). An examination is not needed in this case because the only evidence indicating the Veteran "suffered an event, injury or disease in service" is his own unsupported lay statements. The service treatment records do not reflect any complaints or treatment for a heart disability. The Veteran has asserted that his coronary artery disease is due to exposure to herbicides; however, the evidence shows that Veteran was never stationed in Vietnam and there is no other competent or credible evidence of direct exposure to herbicides. Furthermore, the record contains no competent or credible evidence that indicates a current heart disability may be related to active service. VA is not required to provide a medical examination when there is not credible evidence of an event, injury, or disease in service. See Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Additionally, a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require the Secretary to provide an examination. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For all of these reasons, the evidence does not indicate that the claimed disabilities may be related to active service such as to require an examination, even under the low threshold of McLendon. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Service Connection The Veteran contends that he was exposed to herbicides in service, which resulted in his current diagnosis of coronary artery disease. Therefore, he claims that presumptive service connection is warranted for this disability. For the reasons that follow, service connection for coronary artery disease is not warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arteriosclerosis, cardiovascular renal disease, or endocarditis become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2014). In addition, absent affirmative evidence to the contrary, there is a presumption of exposure to herbicides (to include Agent Orange) for all veterans who served in Vietnam during the Vietnam Era (the period beginning on January 9, 1962, and ending on May 7, 1975). 38 U.S.C.A. § 1116(f) and 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active military, naval, or air service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even if there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). Thus, a presumption of service connection arises for a veteran who is presumed exposed to Agent Orange and develops one of the identified conditions. Ischemic heart disease, including coronary artery disease, is one of the identified conditions under § 3.309(e), for veterans who were exposed to herbicides in service. These provisions have been extended to veterans who served near the Korean demilitarized zone (DMZ). See 38 C.F.R. § 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6) (iii)-(iv). In this case, the Veteran's military personnel and service records do not document any service in Vietnam, and the Veteran has never asserted that he served in Vietnam or Korea. See November 2012 response from the National Personnel Records Center indicating no evidence to substantiate any service in the Republic of Vietnam. The record does not otherwise show that he was exposed to herbicides at any other point during his military service. The Veteran only vaguely asserts that he was exposed through contact while stationed at Ft. Sill because herbicides were reportedly stored there; he has offered no specific information on whether he actually came into direct contact with herbicides and/or the circumstances surrounding such contact. There otherwise is no persuasive evidence that he was ever directly exposed to herbicides during active duty. Thus, although the Veteran has been diagnosed with coronary artery disease, a presumptive disability for herbicide exposure, the Board finds that the presumptive regulations regarding exposure to herbicides (Agent Orange) are not applicable in this case. See 38 C.F.R. §§ 3.307(a)(6)(iii), 3.309(e). Notwithstanding the fact that coronary artery disease is not subject to presumptive service connection on the basis of herbicide exposure, the Veteran could still establish service connection for this condition with competent evidence that it was incurred in service, was present during other presumptive periods, or by submitting medical or scientific evidence that it was in fact due to herbicide exposure during service. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). The Veteran's July 1964 entrance examination and his August 1966 discharge examination both reflect his heart was found to be normal upon examination. On the accompanying Reports of Medical History, the Veteran denied shortness of breath, pain or pressure in the chest, chronic cough, palpitation or pounding heart, or high or low blood pressure. The service treatment records are otherwise silent for complaints or treatment for a heart condition. Post-service medical records show a heart condition was found many years after service. Private treatment records of Dr. J.S. dated in December 1999 show the Veteran had a regular heart rate and rhythm. A September 2000 private treatment record from Dr. A.B. indicated that the left ventricular chamber dimension was normal size with concentric left ventricular hypertrophy present, normal overall systolic global contractility without regional wall motion abnormalities identified. The report also stated, "aortic root dimension, left atrial chamber, right ventricular and right atrial chamber size normal without pericardial effusion or intramyocardial thrombus seen." The report concludes by stating trivial mitral and tricuspid and pulmonic valve insufficiency is seen. Many years later, a September 2008 emergency room report shows that the Veteran complained of tightness in his chest; on examination, his heart rate and rhythm were tachycardic. A November 2008 hospital record gave a diagnostic impression of no acute cardiopulmonary process. Hospital records dated in July 2011 indicate the Veteran presented to the hospital with an acute anteroseptal myocardial infarction, acute congestive heart failure likely secondary to myocardial ischemia and infarction, and risk factors for coronary artery disease. The final discharge report showed moderate coronary artery disease. Based on the evidence, there was no evidence of heart problems during service or for many years thereafter; indeed the Veteran was not diagnosed with coronary artery disease until July 2011, 45 years after discharge from service. As a chronic heart disability was not manifested within one year of the Veteran's service discharge, he is not entitled to presumptive service connection for such a disability. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). As symptoms of a chronic heart disease (e.g. arteriosclerosis, cardiovascular renal disease, or endocarditis) were not noted, that is, observed, in service, and as there is no competent evidence either contemporaneous with or after service that symptoms of a chronic heart disease were noted during service, and as the Veteran has not asserted otherwise, the principles of service connection pertaining to chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) do not apply. There also is no competent evidence linking the Veteran's current heart disability directly to service, to include as a result of direct herbicide exposure as alleged by the Veteran. In the June 2015 Appellant's Brief, the Veteran's representative asserted that the Veteran's ischemic heart disease was caused by exposure to herbicides while stationed at Ft. Sill in Oklahoma, where Agent Orange was reportedly stored during the Vietnam War. Although the Board may determine that a veteran was otherwise exposed to herbicides upon review of the evidence, in this case, there simply is no competent or persuasive evidence to establish that the Veteran was actually exposed to herbicides in service and that such exposure caused his current heart disability. As a layperson, the Veteran is competent to report on matters observed or within his personal knowledge, and thus is competent to relate his observations or relate that he had been told or read that he had been in an area where he was exposed to Agent Orange. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994), Grottveit v. Brown, 5 Vet. App. 91, 93 (1993)). Even assuming, without deciding, that such lay assertions might provide some evidence of herbicide exposure in an appropriate case, such is not the case here. There is no competent or credible evidence of exposure to herbicides during service within the record. The only evidence of herbicide exposure are the Veteran's own statements, asserting that he was exposed to herbicides as Ft. Sill was "known to have been a storage site for Agent Orange in Vietnam." However, the Veteran has not described any event in which he was physically exposed to herbicides, witnessed spraying of herbicides, or was told or read that he was in an area where he was exposed to herbicides. Rather, the June 2015 Brief from the Veteran's representative only alluded to herbicide exposure as a result of physical proximity to an alleged Agent Orange storage site. Without any competent evidence of actual exposure to herbicides, the preponderance of the evidence is against a finding of in-service herbicide exposure. Moreover, there is no competent evidence linking the Veteran's current heart disability directly to service. The only evidence proffered in support of direct causation, is the Veteran's own lay contentions. The Veteran, however, is not competent to directly link any current heart disability to service as this requires medical expertise. The question of causation in this case concerns the inner workings of the cardiovascular system - a medical subject concerning an internal physical process extending beyond an immediately observable cause and effect relationship. As such, the question of etiology in this case may not be competently addressed by lay evidence, and the Veteran's unsupported nexus opinion is not competent or probative evidence. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456(2007). In sum, the evidence shows the Veteran currently has a diagnosis of coronary artery disease but there is no probative evidence of either in-service herbicide exposure, or any other in-service event, disease or injury pertaining to coronary artery disease, nor is there competent medical evidence which links the Veteran's coronary artery disease to service. In light of the foregoing, the preponderance of the evidence is against the claim. The Board considered the applicability of the benefit of the doubt doctrine. However, that doctrine is not applicable in the instant appeal as the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102 (2014). ORDER Entitlement to service connection for ischemic heart disease, to include as secondary to herbicide exposure, is denied. ____________________________________________ D. JOHNSON Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs