12-33 038
12-33 038
| Board of Vet. App. | May 23, 2017Background
- Veteran served on active duty from Feb 1969 to Feb 1971 and later filed for service connection for congestive heart failure (CHF).
- Claim initially denied by RO; remanded in July 2015 for development and addendum medical opinion; appeal before Board from RO in Seattle.
- Veteran alleges CHF caused by (a) in-service EKG abnormality, (b) exposure to Agent Orange via handling personal effects of Vietnam-deceased service members at Camp Pendleton, and (c) contaminated water at Camp Lejeune (served there during presumptive period).
- Medical development: March 1987 VA exam showed no cardiovascular complaints in service; Sept 2011 and Aug 2015 VA examiners diagnosed ischemic cardiomyopathy/CHF and opined it is less likely than not related to service, herbicide exposure, or Camp Lejeune contaminants.
- Veteran submitted lay testimony and a nexus opinion from a physician’s assistant; Board found the PA’s opinion inconsistent with records and of limited probative value.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for CHF based on in-service EKG | EKG showing fast heart rate in service indicates onset of heart disease | VA: no other in-service signs; EKG finding not indicative of later CHF; examiner says unlikely | Denied — no nexus to service |
| Service connection for CHF via Agent Orange exposure | Handling personal effects of Vietnam-deceased personnel contaminated with Agent Orange caused exposure leading to CHF | VA: Veteran did not serve in Vietnam; clothing exposure not a recognized basis for presumptive exposure and claimed factual exposure is speculative | Denied — no presumptive exposure; insufficient proof of direct exposure or nexus |
| Service connection for CHF via Camp Lejeune water contamination | Service at Camp Lejeune exposed Veteran to contaminants that caused CHF | VA: CHF/cardiomyopathy not among statutory presumptive conditions; medical evidence does not link Camp Lejeune contaminants to CHF | Denied — no presumptive nexus and no competent medical nexus evidence |
| Probative value of lay and non-physician nexus opinions | Veteran and PA assert causal link based on history and exposure | VA: lay testimony competent for observable symptoms but not etiology; PA opinion based on unsubstantiated history lacks probative value | Denied weight to lay/PA causation opinions; relied on VA examiners |
Key Cases Cited
- Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009) (sets out nexus requirement for service connection)
- Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (when presumption not applicable, must consider direct service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (limits of lay evidence competency for medical etiology)
- Gabrielson v. Brown, 7 Vet. App. 36 (Fed. Cir. 1994) (Board must analyze credibility and probative value of evidence)
- Sanchez-Benitez v. West, 13 Vet. App. 282 (Vet. App. 1999) (medical opinion merely repeating veteran’s unsubstantiated history has no probative value)