Citation Nr: 1237172 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 10-06 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a heart disability, to include ischemic heart disease, to include as due to herbicide exposure and/or secondary to service-connected posttraumatic stress disorder. 2. Entitlement to an increased rating for cephalalgia associated with left hyperacusis, currently rated as 50 percent disabling. 3. Entitlement to an increased (compensable) rating for hearing loss of the left ear. REPRESENTATION Veteran represented by: David L. Huffman, Attorney at Law ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from July 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of March 2009 and March 2011 rating actions by the Department of Veterans Affairs (VA) Regional Office (RO) located in Roanoke, Virginia. In response to the Veteran's request for a Travel Board hearing, such a hearing was scheduled to be held in August 2012. However, prior to the hearing, the Veteran, through his attorney-representative, cancelled the Travel Board hearing. Not having received a request to reschedule the hearing and pursuant to 38 C.F.R. § 20.704(d), the Board will proceed with its adjudication of the appeal "as though the request for a hearing had been withdrawn." 38 C.F.R. § 20.704(d); Anderson v. Brown, 9 Vet. App. 542, 546- 47 (1996). In a July 2010 rating action, the RO granted service connection for the following: (1) posttraumatic stress disorder (PTSD), assigning a 30 percent disability rating, (2) diabetes mellitus type II, assigning a 20 percent disability rating, (3) peripheral neuropathy of the right lower extremity, assigning a 10 percent disability rating, and (4) peripheral neuropathy of the left lower extremity, assigning a 10 percent disability rating. In August 2010, the Veteran submitted a notice of disagreement (NOD), disagreeing with the disability ratings assigned to his service-connected PTSD, peripheral neuropathy of the right lower extremity, and peripheral neuropathy of the left lower extremity. The RO issued a statement of the case (SOC) in March 2012. Shortly thereafter, in April 2012, a SOC was issued on the claim for service connection for a heart condition. In May 2012, a substantive appeal (VA Form 9) was received. That form indicated that the Veteran was only appealing the issue(s) detailed on the attached document, and that document expressly stated that it was in response to the April 2012 SOC on the claim for service connection for a heart condition. There is no indication that this was meant to be a general appeal covering all pending issues - in fact, exactly the opposite. Accordingly, the issues of entitlement to an initial rating in excess of 30 percent for PTSD, entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the right lower extremity, and entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the left lower extremity, are not before the Board for appellate consideration. The Veteran is currently in receipt of a total disability evaluation based on individual unemployability (TDIU). That is, he has been found unemployable due to the totality of his service-connected disabilities and is in receipt of a 100 percent disability evaluation. See 38 C.F.R. §§ 3.340, 3.321, 4.16(a). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Throughout the course of this appeal, the Veteran's attorney-representative has requested, at various times, that the RO obtain outpatient treatment records from the McGuire VA Medical Center (VAMC). The claims file contains the records until March 2011. However, in a February 2012 letter, the attorney-representative indicated that he had received VA treatment records dated from November 2010 to February 2012, and he asked that VA obtain the records. It is clear, then, that records from April 2011 to the present are missing. Inasmuch as the VA is on notice of the existence of additional records, these records should be obtained prior to any further appellate review of this case. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992); see generally Murincsak v. Derwinski, 2 Vet. App. 363 (1992). In regard to the Veteran's claim for service connection for a heart disability, to include ischemic heart disease, to include as due to herbicide exposure and/or secondary to service-connected PTSD, the Board notes that the Veteran had active military service from July 1966 to August 1969, including service in the Republic of Vietnam. Because he had active service in Vietnam during the Vietnam era, he is presumed to have been exposed to herbicides in service. 38 U.S.C.A. § 1116(f). In this case, the Veteran contends that he has a heart disability, to include ischemic heart disease, which is either related to his in-service herbicide exposure, or in the alternative, is secondary to his service-connected PTSD. The Board notes that ischemic heart disease was recently added to the lists of diseases for which service connection can be established on a presumptive basis as due to exposure to herbicides within the Republic of Vietnam during the Vietnam era. See 75 Fed. Reg. 53202 (Aug. 31, 2010). In an August 2012 statement, the Veteran's attorney-representative noted that the Veteran was being treated for high cholesterol and hypertension, which were two risk factors for coronary artery disease. Thus, the Veteran's attorney-representative maintained that the evidence of record suggested that the Veteran had coronary artery disease. The evidence of record shows that the Veteran has a current heart disability, diagnosed as atrial fibrillation. However, the evidence of record is unclear as to whether the Veteran currently has any other heart disability, to include ischemic heart disease and/or coronary artery disease. Private medical records reflect that in approximately 2008, the Veteran was diagnosed with atrial fibrillation. Additional private medical records show that in April 2009, J.Z., M.D., stated that the Veteran had been in permanent atrial fibrillation for at least the last 10 years. A recent echocardiogram showed mild left ventricular systolic dysfunction and a mildly dilated left atrium. In addition, Dr. Z. noted that a recent stress nuclear test suggested apical ischemia. According to Dr. Z., with left ventricular dysfunction and a positive stress test, he was more concerned that there was occult coronary artery disease. In a subsequent statement from Dr. Z., dated in June 2011, he stated that the Veteran had permanent atrial fibrillation; the Veteran had failed ablations and multiple medications. Dr. Z. also checked the box "no" as to the question of whether the Veteran had ischemic heart disease. In August 2010, the Veteran underwent a VA examination that was conducted by a nurse practitioner. According to the nurse practitioner, the "problem" to be addressed was ischemic heart disease due to Agent Orange exposure. Following the physical examination and a review of the claims file, the nurse practitioner diagnosed the Veteran with atrial fibrillation. In regard to the "problem associated with the diagnosis," the nurse practitioner noted "ischemic heart disease due to Agent Orange exposure." It is unclear if the nurse practitioner was diagnosing the Veteran with ischemic heart disease or just repeating the Veteran's contention that he has ischemic heart disease secondary to in-service herbicide exposure. This needs to be clarified. The Board also notes that on the question of secondary service connection, under 38 C.F.R. § 3.310(a), service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury and secondary service connection may be found where a service-connected disability aggravates another condition (i.e., there is an additional increment of disability of the other condition which is proximately due to or the result of a service-connected disorder). Allen v. Brown, 7 Vet. App. 439 (1995). An amendment to 38 C.F.R. § 3.310, effective October 10, 2006, essentially codifies Allen and adds language that requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. See 71 Fed. Reg. 52744 (2006). In light of the above, given that the Veteran is service-connected for PTSD, there is no medical evidence currently of record which contains an opinion regarding whether the Veteran's service-connected PTSD caused or aggravated his heart disability, currently diagnosed as atrial fibrillation. Thus, a VA examination should be provided upon remand in order to obtain an opinion regarding whether the Veteran has a heart disability, to include atrial fibrillation, that was caused or aggravated by his service-connected PTSD. Accordingly, the case is REMANDED for the following action: 1. Request copies of the outpatient treatment records from the McGuire VAMC from April 2011 to the present. All records received should be associated with the claims file. 2. After obtaining the VA medical records, the RO must make arrangements with the appropriate VA medical facility for the Veteran to be afforded a VA cardiology examination to ascertain the etiology of any heart disability, to include atrial fibrillation, ischemic heart disease, apical ischemia, and/or coronary artery disease. The examination must be conducted by a physician, preferably a cardiologist. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions: (a) Is it at least as likely as not (50 percent or greater probability) that that the Veteran's currently diagnosed atrial fibrillation is causally linked to his exposure to herbicides in Vietnam, to include Agent Orange. (The Veteran's exposure to herbicides is presumed by law.) (b) Other than the Veteran's currently diagnosed atrial fibrillation, does he have any other heart disability, to include ischemic heart disease, apical ischemia, and/or coronary artery disease? (c) In the alternative, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed heart disability, to specifically include atrial fibrillation, and ischemic heart disease, apical ischemia, and/or coronary artery disease if found, was caused or aggravated by the Veteran's service- connected PTSD. If the Veteran has a heart disability that was aggravated by his service-connected PTSD, to the extent that is possible, the examiner is requested to provide an opinion as to the approximate baseline level of severity of the nonservice-connected heart disability (e.g., slight, moderate) before the onset of aggravation. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of the medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. The examiner is also informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. A rationale should be provided for any opinion or conclusion expressed. 3. After completion of the above and any other development deemed necessary, the RO should review and re-adjudicate the issues on appeal. If any such action does not resolve each claim to the Veteran's satisfaction, the RO must provide the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review The Veteran 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). These claims 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. 2011). _________________________________________________ MICHELLE L. KANE 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) (2011).