Citation Nr: 1314025 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 10-47 637 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right lower extremity vascular or venous disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1953 to July 1973. His awards and decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, declined to reopen the Veteran's claim for service connection for varicose veins of the right lower extremity. In January 2013, the Board reopened the Veteran's claim for service connection and remanded it to the agency of original jurisdiction (AOJ) for additional development and consideration. In April 2013, the AOJ issued a supplemental statement of the case (SSOC) reflecting denial of the underlying claim and returned the Veteran's file to the Board for further appellate review. The issue of entitlement to service connection for ischemic heart disease, specifically atherosclerosis, has been raised by the record as a February 2013 VA examiner indicated that the Veteran's right lower extremity vascular disorder was likely caused by atherosclerosis. The Board notes that the Veteran's service in Vietnam creates a presumption of exposure to herbicides (38 C.F.R. § 3.307(a) (6) (iii) (2012)) and VA recognizes ischemic heart disease as a disability presumed to be related to herbicide exposure. 38 C.F.R. § 3.309(e). As the issue of entitlement to service connection has not been adjudicated by the AOJ the Board does not have jurisdiction over it and REFERS it to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that VA fulfills its duties to notify and assist the Veteran in order to create a complete record upon which to decide his claim for service connection for a right lower extremity venous or vascular disorder so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In January 2013, the Board remanded the claim for service connection for a right lower extremity venous or vascular disorder for additional development. The Board specifically directed the AOJ to assist the Veteran in gathering additional records and to obtain a medical opinion as to the etiology of any current venous disability. Although additional records have been added to the claims file, the most recent VA treatment note from the Orlando VA Medical Center within the (virtual) file is dated May 2, 2012. Further, the records reflect that the Veteran receives (or received in the recent past) primary care from a private physician. The Veterans Claims Assistance Act of 2000 (VCAA) requires VA to assist claimants by gathering all pertinent records of VA treatment and all identified private treatment records. The agency of original jurisdiction (AOJ) must obtain any outstanding records of VA treatment, provide the Veteran with an authorization form for the release of any pertinent private records, and associate any available records with the claims file before appellate review proceeds. The Veteran was afforded a VA examination in February 2013. The examiner determined that the Veteran did not have a venous or vascular disorder of the right lower extremity that was either caused or aggravated by his active duty service. The examiner observed the Veteran's treatment history, to include his service treatment records, and diagnosed peripheral vascular disease of the right lower extremity. The examiner noted that peripheral vascular disease could result from multiple causes, specifically including injury/trauma and infection of blood vessels (such as from syphilis). Although the Veteran's service treatment records reflect diagnosis of herpes and work-up for latent syphilis as well as treatment for trauma (football injury) to the right leg, the examiner opined that the likely cause of the Veteran's peripheral vascular disease was atherosclerosis. The examiner did not provide any analysis or discussion of the noted in-service occurrences and the Board observes that the medical evidence currently of record does not appear to support a diagnosis of atherosclerosis. Further, the examiner did not address the Veteran's contention that his right leg disability was caused by "environmental toxins" (presumably his presumed in-service exposure to herbicides). As the VA examination report does not reflect a complete analysis of the Veteran's in-service experiences and his current contentions, the Board finds that a clarifying opinion is necessary. Once VA undertakes the effort to provide an examination for a service connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A remand is necessary in order to obtain an addendum opinion that addresses the Veteran's contentions in light of his documented medical history. As noted above, the Veteran's service in the Republic of Vietnam creates a presumption that he was exposed to herbicides while on active duty. 38 C.F.R. § 3.307(a) (6) (iii). The February 2013 VA examiner indicated that the Veteran had atherosclerosis and the Board notes that 38 C.F.R. § 3.309(e) identifies ischemic heart disease as a disability associated with exposure to herbicides. As the examiner diagnosed the Veteran with peripheral vascular disease and opined that disease was likely caused by atherosclerosis, the referred issue of entitlement to service connection for ischemic heart disease (atherosclerosis) is inextricably intertwined with the Veteran's claim for service connection for a venous/vascular disability. See Moffitt v. Brown, 10 Vet. App. 214, 222 (1997); Parker v. Brown, 7 Vet. App. 116 (1994); Babchak v. Principi, 3 Vet. App. 466, 467 (1992); Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). Below, the Board directs the AOJ to adjudicate the issue of service connection for ischemic heart disease prior to readjudicating the claim for service connection for a right lower extremity vascular or venous disorder. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Obtain all VA treatment records from the Orlando VA Medical Center dated after May 2, 2012. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with an opportunity to identify or submit any additional private medical evidence that is not of record. Specifically ask him to identify the private physician who was his primary care physician in October 2009. Send him the necessary authorizations for the release of any private treatment records not currently on file. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 3. After the above development has been completed and all outstanding records have been associated with the claims file, return the claims file to the VA examiner who conducted the Veteran's February 2013 artery and vein examination. The claims file and a copy of this Remand must be made available to the examiner. The examiner shall note in the examination report that the claims folder and the Remand have been reviewed. If the February 2013 VA examiner is not available, the claims file should be provided to an appropriate medical professional so as to render the requested opinions. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a review of the claims file, to specifically include a discussion of the Veteran's service treatment history (including herpes, syphilis, injury to the right leg, and presumed exposure to herbicides), the examiner should offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current venous/vascular disorder of the right lower extremity (diagnosed as peripheral vascular disease at the February 2013 VA examination) was caused by or related to any incident of the Veteran's service, to specifically include, but not limited to, his treatment for herpes, syphilis, and/or an injury to the right leg, and/or exposure to herbicides. Any opinion offered must be accompanied by supporting rationale. 4. After adjudication of the referred issue of entitlement to service connection for ischemic heart disease, and any other development as may be indicated by any responses received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim for service connection for a right lower extremity vascular or venous disorder should be readjudicated based on the entirety of the evidence. If the appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2012). _________________________________________________ A. JAEGER 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).