Citation Nr: 1008091 Decision Date: 03/04/10 Archive Date: 03/11/10 DOCKET NO. 08-25 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for heart disability, to include as secondary to service-connected posttraumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from November 1968 to November 1970, to include duty in Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran was afforded a Travel Board Hearing in December 2009. A transcript is associated with the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran in this case is service-connected for PTSD based on his combat experiences in the Vietnam War. He alleges, essentially, that the stress associated with this condition has caused his anxiety levels to rise, and that as a result, he has developed heart disability. The RO denied the Veteran's claim in a January 2008 rating decision on the basis of there being no evidence of a cardiovascular disability. Also, the RO concluded that medical literature did not support a relationship between heart conditions and PTSD. The RO's assessment of the Veteran's claim is erroneous on many levels. Firstly, the Board notes that the Veteran has, indeed, been treated for cardiovascular abnormalities in recent years. Clinical reports dated in July 2007 list hypertension as an identified problem for the Veteran, and he has been placed on medication to control it. Regarding the RO's assertion that certain articles of medical literature do not support a nexus between PTSD and heart-related disorders, VA adjudicators (both at the Board and RO levels) are specifically prohibited from making unsubstantiated medical determinations and from using their own unfounded medical judgment in place of opinions of medical experts. See Colvin v. Derwinski, Vet. App. 171, 175 (1991). The Veteran has submitted a newspaper article which discusses a relationship between PTSD and post-service heart conditions, and although this is not a competent medical opinion specific to the Veteran's medical circumstances, it is sufficient to show that there is at least a potential relationship between PTSD and his heart condition. As the Veteran has PTSD, has a diagnosis of hypertension, and there is some possibility of an etiological relationship between these two disorders, there is a requirement that the Veteran be afforded a comprehensive VA examination addressing causation. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). At his hearing, the Veteran testified that his hypertension was related to his PTSD. The RO has not considered the issue of service connection for hypertension. As this issue is inextricably intertwined with the issue on appeal, the RO must consider the issue before final appellate consideration. On October 13, 2009, in accordance with authority provided in 38 U.S.C.A. § 1116, the Secretary of Veterans Affairs announced his decision to establish presumptions of service connection, based upon exposure to herbicides within the Republic of Vietnam during the Vietnam era, for three new conditions, ischemic heart disease, Parkinson's disease, and B cell leukemias. As required by 38 U.S.C.A. § 1116, the Department of Veterans Affairs (VA) will issue regulations through notice and comment rule-making procedures to establish the new presumptions of service connection for those diseases. Those regulations will take effect on that date that a final rule is published in the Federal Register. Until that time, VA does not have authority to establish service connection and award benefits based upon the planned new presumptions. On November 20, 2009, the Secretary of Veterans Affairs directed the Board to stay action on all claims for service connection that cannot be granted under current law but that potentially may be granted based on the planned new presumptions of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. Because this appeal involves service connection for heart disease and the Veteran has Vietnam service, this appeal ordinarily would be subject to the stay. In light of the Veteran's contention that he has heart disease secondary to his service-connected PTSD, the case will be remanded for consideration of that aspect of the claim. If the regulations are issued in the meantime, the RO can consider the new regulations as well. Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. Develop and adjudicate the issue of service connection for hypertension. 2. The Veteran should be afforded a VA cardiovascular examination to determine the nature, approximate onset date, and etiology of any cardiovascular disorder which may currently be present. Following a review of the relevant medical evidence in the claims file, the clinical evaluation, and any tests that are deemed necessary, the examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any cardiovascular disorder was caused or worsened by his service-connected PTSD. Furthermore, the examiner should review the service treatment records and relevant post-service history and also give an opinion as to whether it is at least as likely as not that any cardiovascular condition had etiological origin during the Veteran's period of active military service. 3. After completion to the extent possible of the directed development and any other development deemed necessary, re-adjudicate the Veteran's claim. In doing so, consider any newly issued regulations (if issued yet) concerning Vietnam service and cardiovascular disease. If the claim remains denied, issue an appropriate supplemental statement of the case, allow the Veteran an appropriate time to respond, and forward the case to the Board for final adjudication. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).