Citation Nr: 18160427
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 15-06 109
DATE:	December 26, 2018
ORDER
Entitlement to service connection for a heart condition (claimed as congestive heart failure and coronary artery disease), to include as due to herbicide exposure, is denied.
FINDINGS OF FACT
1. The Veteran set foot in the Republic of Vietnam; he is presumed to have been exposed to herbicides.
2. The most probative evidence of record shows that the Veteran’s diagnosed heart conditions of congestive heart failure and atrial fibrillation did not manifest during or as a result of active military service, including exposure to herbicides.
CONCLUSION OF LAW
The criteria establishing entitlement to service connection for a heart condition are not met. 38 U.S.C. §§ 1101, 1110, 1116, 1131, 1154, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran served on active duty from January 1943 to April 1975. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The claims were remanded by the Board in July 2015 for further development. Subsequently, an August 2018 rating decision granted entitlement to service connection for prostate cancer, hypertension (claimed as high blood pressure), multiple brain strokes, and special monthly compensation based upon aid and attendance. As the August 2018 rating decision represents a full grant of the benefits sought for those claims, they are no longer in appellate status. A Supplemental Statement of the Case was also issued in August 2018 addressing the remaining claim of entitlement to service connection for a heart condition.
The Veteran passed away in July 2015 and the appellant, his spouse, is recognized as a substitute claimant in this matter.  
This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2) (2012).
1. Entitlement to service connection for a heart condition (claimed as congestive heart failure and coronary artery disease), to include as due to herbicide exposure.
The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). To prevail on the issue of service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.
When considering evidence supporting a service-connection claim, the Board must consider, on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson, 581 F.3d at 1316 (reiterating that “‘[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.’”) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)).
For purposes of service connection for a disability or death resulting from exposure to a herbicide agent, including a presumption of service connection, a veteran who, during active military, naval, or air 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 during such service to an herbicide agent and may be presumed to have been exposed during such service to any other chemical compound in an herbicide agent, absent affirmative evidence to the contrary. 38 U.S.C. § 1116; 38 C.F.R. § 3.307(a)(6)(iii). “Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii).
Diseases entitled to the presumption under 38 C.F.R. § 3.309(e) include AL amyloidosis; chloracne or other acneform disease consistent with chloracne; type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; ischemic heart disease (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (CAD) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina); all chronic B-cell leukemias (including, but not limited to, hairy-cell leukemia and chronic lymphocytic leukemia); multiple myeloma; non-Hodgkin’s lymphoma; Parkinson’s disease; early onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx, or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma).
In the case of any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the Veteran. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Satisfactory lay or other evidence under section 1154(b) has been defined as “credible evidence.” See Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996).
The appellant is seeking service connection for a heart condition, claimed as congestive heart failure and CAD, on the basis that the Veteran developed these conditions as a result of his service, including exposure to herbicide agents. 
As an initial matter, the Board notes that the December 2017 VA examiner opined that it is less likely than not that the Veteran had a diagnosis of ischemic heart disease (IHD) or CAD prior to his death in July 2015. This opinion was based on the fact that the Veteran’s cardiologist did an extensive evaluation of his cardiac status in July 2013 and there is no mention of any IHD or CAD. The VA examiner noted occasional mention by other non-cardiology medical providers of a past history of CAD, but these references appeared to be based on undocumented reports of past CAD with no mention of any details or objective medical data from medical records to support the diagnosis. The VA examiner found that the Veteran’s cardiologist was the most knowledgeable medical provider concerning his heart conditions. He stated that the cardiologist’s report was based on objective medical data, and there was no mention of CAD or IHD. He further stated that the Veteran had a documented history of congestive heart failure and atrial fibrillation, but these heart conditions were never attributed to CAD or IHD. 
After careful consideration, the Board finds that the Veteran had diagnoses of congestive heart failure and atrial fibrillation, but not CAD or IHD. Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, while the appellant may assert that the Veteran experienced CAD or IHD, neither she nor the Veteran are competent to provide a diagnosis in this case. Competent statements are limited to that which a person has actually observed and is within the realm of his or her personal knowledge; such knowledge comes to the person through use of his or her senses-that which is heard, felt, seen, smelled or tasted. See Layno v. Brown, 6 Vet. App. 465 (1994). It was within the Veteran’s realm of personal knowledge whether he experienced symptoms related to a heart condition. It is not shown, however, that the appellant or the Veteran possess the medical expertise necessary to provide a probative opinion on a complex medical matter such as diagnosis of CAD or IHD. See Jandreau, 492 F.3d at 1377 n.4. Consequently, the Board gives more probative weight to the objective medical evidence of record, including the December 2017 VA examination report.
Accordingly, the current diagnosis element of the service connection analysis is met based upon the findings of congestive heart failure and atrial fibrillation. Thus, the analysis turns to whether an in-service injury, event, or disease is established. The appellant does not allege that the Veteran was diagnosed with a heart condition during service or experienced other heart-related symptoms. Instead, she asserts that he was exposed to herbicides during his time in service, when he flew in-country and sometimes landed to complete rescue missions in Vietnam. Her theory of entitlement to service connection is that this herbicide exposure resulted in the Veteran’s diagnosed heart conditions.  
The record contains a February 2012 statement from the Veteran in which he indicated that he was working with a green beret detachment which resulted in him flying a helicopter CH-3 or A-1 Skyraider “on a daily basis” in North Vietnam. He stated that “[o]n these missions we admit that we made ground contact because we rescued down air crew members and occasionally some army personnel.” He also stated that on one of the CH-3 Search Missions, he got “out of the CH-3 and picked up an AK-47” which he later gave to a Canadian General at Norad Headquarters.  His DD Form 214 confirms that he was a pilot, and he received the Distinguished Flying Cross with First Oak Leaf Cluster in recognition of his service. Additional service personnel records indicate that he flew at least 160 combat missions while he was stationed in Thailand during the Vietnam War. Personnel records show the Veteran flew aerial missions over Vietnam. The Veteran submitted a list of APOs which included the Veteran’s name and showed an APO of 96307 (Tan San Nhout). The records do not specifically indicate that the Veteran flew into Vietnam and set foot in-country. The Veteran, however, flew combat missions, and the circumstances and conditions under which he claims he set foot in-country are consistent with the circumstances and conditions of service as a pilot in combat. Thus, there is satisfactory lay evidence that he set foot on land in the Republic of Vietnam. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Accordingly, he is presumed to have been exposed to herbicides.
However, congestive heart failure and atrial fibrillation are not listed as disabilities subject to presumptive service connection under 38 C.F.R. § 3.309(e).  Consequently, presumptive service connection is not warranted on the basis of herbicide exposure.
Notwithstanding the foregoing presumption provisions, the United States Court of Appeals for the Federal Circuit has determined that a claimant is not precluded from establishing service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Thus, the claim turns on whether the Veteran’s congestive heart failure and atrial fibrillation were etiologically related to his military service, to include conceded herbicide exposure.
STRs are silent as to any complaints or treatment for a heart condition. Periodic physical examinations for flight duty consistently revealed a normal heart. In conjunction with separation from the service, the Veteran underwent physical evaluation in May 1974. He denied any heart trouble, shortness of breath, or pain or pressure in the chest. A physical examination found a normal heart.
In December 2017, a VA examiner prepared a medical opinion regarding the etiology of the Veteran’s diagnosed heart conditions. He stated that there is no peer-reviewed literature that would suggest any association or causation of non-ischemic congestive heart failure or atrial fibrillation with herbicide exposure. 
As is true with any piece of evidence, the credibility and weight to be attached to medical opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician’s access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, supra; Prejean v. West, 13 Vet. App. 444, 448-9 (2000).
Here, the opinion was provided by a VA internal medical physician who possesses the necessary education, training, and expertise to provide the requested opinion. The VA opinion was based on a review of the Veteran’s record and accompanied by sufficient explanation.  
The Board acknowledges the lay assertions that the Veteran’s heart conditions are related to his military service, to include herbicide exposure. Although lay persons are competent to provide opinions on some medical issues, determining the etiology of a complex condition such as hypertension congestive heart failure or atrial fibrillation falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In this regard, while the appellant and the Veteran are competent to report his symptoms, any opinion regarding whether his diagnosed heart conditions are etiologically related to his military service requires medical expertise that they have not demonstrated.  See Jandreau, 492 F. 3d at 1376. As such, the Board assigns little probative value to the lay contentions that the congestive heart failure and atrial fibrillation are related to his military service, to include herbicide exposure. 
In summary, the available medical evidence does not include a positive medical nexus opinion relating the diagnosed heart conditions to service, including exposure to herbicide agents. The only medical opinion of record from the December 2017 VA examiner found no support for such a contention. In weighing the clinical evidence of record, the Board notes that neither the Veteran’s VA treatment records nor his private medical records offer any probative discussion relating the claimed conditions to his service or herbicide exposure. The Board itself is prohibited from exercising its own independent judgment in the Veteran’s favor. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 
Neither congestive heart failure nor atrial fibrillation are considered by VA to be a chronic disease. 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Thus, application of the presumption related to chronic diseases is not warranted in this case. See 38 C.F.R. § 3.309(a).
While the lay contentions as to the etiology of the Veteran’s congestive heart failure and atrial fibrillation have been considered, the Board accords greater weight to the probative medical evidence of record. In the absence of competent medical evidence of a link between the diagnosed heart conditions and his military service, to include conceded exposure to herbicides, service connection for congestive heart failure and atrial fibrillation is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. Gilbert, 1 Vet. App. at 53; 38 C.F.R. § 3.102.
 
TANYA SMITH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Jamison, Elizabeth G. 

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