Citation Nr: 1126532	
Decision Date: 07/14/11    Archive Date: 07/21/11

DOCKET NO.  06-36 532	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUES

1.  Entitlement to service connection for a heart disability, to include coronary artery disease (CAD).

2.  Entitlement to an increased rating greater than 30 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel



INTRODUCTION

The Veteran had active service from October 1968 to June 1970.

This matter is before the Board of Veterans' Appeals (Board) following a November 2010 Order from the United States Court of Appeals for Veterans Claims (CAVC) vacating the Board's January 2010 decision.  The Court's Order granted a November 2010 joint motion for remand (JMR) and returned the matter to the Board for action consistent with the November 2010 JMR and subsequent Court Order.  This matter was originally on appeal from a February 2006 Regional Office (RO) in St. Louis, Missouri rating decision. 

Initially, the Board notes that an August 2003 Board decision denied entitlement to service connection for congestive heart failure, status post myocardial infarction.  The claims file does not indicate that the Veteran appealed this decision and, as such, the decision is final.  In November 2004, the Veteran submitted a claim for entitlement to service connection for a heart disability, claiming his current heart problems were caused by his service-connected diabetes mellitus, type II.  The subsequent February 2006 rating decision, noted above, discussed in passing the prior denial of entitlement to service connection for congestive heart failure, but treated the claim as a new claim.  The subsequent January 2010 Board decision treated the claim as a new claim and did not mention the prior Board decision.  In light of the foregoing, the Board will consider the prior final denial of entitlement to service connection for a heart disability (specifically claimed as congestive heart failure, status post myocardial infarction) to be reopened and, as such, the claim has been classified as listed above.

In addition, the Board notes that the January 2010 Board decision also remanded the issue of entitlement to an increased rating greater than 20 percent for diabetes mellitus, type II, with nephropathy.  As the requested development and readjudication of the claim has not yet been completed, the matter is not currently before the Board.

The issue of an increased rating for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  The Veteran served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, and is presumed to have been exposed to herbicides, including Agent Orange.

2.  CAD and myocardial infarction are presumed to be etiologically related to exposure to herbicides during service.


CONCLUSION OF LAW

CAD was incurred during the Veteran's active service as a result of exposure to herbicides.  38 U.S.C.A. §§ 1101, 1110, 1112, 1116, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board initially wishes to make it clear that it is aware of the Court's instructions in Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991), to the effect that a remand by the Court is not "merely for the purposes of rewriting the opinion so that it will superficially comply with the 'reasons or bases' requirement of 38 U.S.C. § 7104(d)(1).  A remand is meant to entail a critical examination of the justification for the decision."  The Board's analysis has been undertaken with Fletcher in mind. 

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Veterans Claims Assistance Act (VCAA)

The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).  In light of the favorable decision herein as to the issue of entitlement to service connection for ischemic heart disease, the Board finds that any deficiencies in notice were not prejudicial to the Veteran.  

Service Connection

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  38 U.S.C.A. § 1110, 1131 (West 2002).  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b) (2010).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  38 C.F.R. § 3.303(d). 

Certain diseases, to include organic heart disease, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty.  38 U.S.C.A. § 1112 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2010).  As there is no evidence or claim that the Veteran was diagnosed with any heart disability within one year of service the above provision is not applicable.  

Alternatively, 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, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."  38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2010); 38 C.F.R. § 3.307(a)(6)(iii) (2010).  If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 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.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied.  38 C.F.R. § 3.309(e). 

In order to benefit from the presumption of service connection for diseases associated with herbicide exposure, the Veteran must have one of the diseases enumerated in 38 C.F.R. § 3.309(e).  During the pendency of this claim, effective August 31, 2010, section 3.309(e) was amended to add certain diseases, including ischemic heart disease, to the list of diseases associated with exposure to herbicide agents.  The final rule is applicable to claims received by VA on or after August 31, 2010 and to claims pending before VA on that date.  See 75 Fed. Reg. 53, 202.  Therefore, it is applicable to the present claim which was pending before VA when the rule was published.  The amendment provides, in pertinent part, that ischemic heart disease includes but is not limited to acute, subacute, and old myocardial infarction, atherosclerotic cardiovascular disease including coronary artery disease and coronary bypass surgery, and stable, unstable, and Prinzmetal's angina.  Id at 53, 216.

Here, the Board finds that the Veteran has ischemic heart disease as defined under the amendment to section 3.309(e).  In this regard, the Veteran's VA treatment records reflect diagnoses of coronary artery disease, as well as past myocardial infarction.  Thus, the evidence of record establishes that the Veteran has ischemic heart disease, which is presumed to have been caused by his exposure to an herbicide agent during active duty service in Vietnam.  See 75 Fed. Reg. 53, 202.

The Veteran has also argued that his heart disorder is secondary to his service-connected diabetes mellitus, type II.  Because the Veteran's ischemic heart disease is presumed to have been caused by his exposure to Agent Orange, there is no need for the Board to address whether it was caused or aggravated by diabetes mellitus.

The Board notes that the presumption that his ischemic heart disease was caused by his exposure to an herbicide agent during active service can be rebutted by evidence demonstrating some other etiology of the heart problems.  See 38 C.F.R. § 3.307(d).  In that regard, the Board recognizes that there is medical evidence of record indicating factors unrelated to the Veteran's military service, specifically obesity and tobacco use, caused his heart problems.  While this evidence is suggestive, the Board does not find that it is dispositive of the issue and will afford the Veteran the benefit of the doubt that his in-service exposure to herbicides caused his current ischemic heart disease.

Accordingly, the Board finds that the evidence is at least in equipoise with respect to this claim.  Consequently, the benefit of the doubt rule applies, and service connection for ischemic heart disease is granted.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to service connection for ischemic heart disease is granted.


REMAND

The Veteran also alleges his PTSD is more severe than currently rated.  After a thorough review of the Veteran's claims file, the Board has determined that additional development is necessary prior to the adjudication of this claim.

In that regard, the Board notes that there are only several months of treatment records in the claims file regarding the Veteran's claimed worsening of his PTSD symptoms.  In that regard, records from October 2005 and a December 2005 VA examination report indicate significant PTSD symptoms and include GAF scores of 50 and 45, respectively.  A January 2006 VA treatment record, however, notes that he was feeling better, had not been too irritable, and that his nightmares had decreased.  The assigned GAF score was 60, at that time.  Another treatment record from the same day by a different treatment provider indicated a negative PTSD screening, with the Veteran denying nightmares, avoidance behavior, hypervigilance, or feelings of detachment in the past month.  These January 2006 treatment notes are the last medical documents of record.  Given the potentially improved condition since the December 2005 VA examination and the length of time since the last examination, the Board finds that a further VA examination is necessary to accurately evaluate the Veteran's current condition.

In addition, the RO/AMC should take the opportunity to obtain VA treatment records from February 2006 to the present.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with complete notice as required under the VCAA, to include notice of how a disability rating and an effective date for the award of benefits are assigned, pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

2.  Obtain all medical records and hospitalization records for the Veteran's service-connected disabilities from all appropriate VA facilities from February 2006 to the present.  Any negative responses should be documented in the file and the Veteran must be provided with an opportunity to provide such medical records.

3.  After the above evidence is obtained, to the extent available, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected PTSD.  The claims file must be made available to, and be reviewed by, the examiner in connection with the examination, and the examiner should so indicate in the report.  The examiner should perform any tests or studies deemed necessary for an accurate assessment.

4.  Thereafter, readjudicate the Veteran's claim.  If the full benefit requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 

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. 2010).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs