Citation Nr: 1318156 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 09-26 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for peripheral vascular insufficiency, including as secondary to the service-connected generalized anxiety disorder (GAD) and as due to herbicide exposure. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD Biswajit Chatterjee, Counsel INTRODUCTION The Veteran served on active duty from September 1969 to March 1972. This appeal to the Board of Veterans' Appeals (Board) is from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied service connection for peripheral vascular insufficiency and Tourette's syndrome. In August 2012, the Board remanded the claims for additional development. A February 2013 rating decision granted service connection for benign essential tremor, claimed as Tourette's syndrome and tics and tremors. As that decisions constitutes a full grant of the benefits sought as to that claim, it is no longer on appeal. Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, D.C. REMAND Regrettably, although it will result in additional delay in adjudicating this appeal, a remand is required to ensure compliance with the Board's prior August 2012 remand and provide an adequate VA medical opinion to address several theories of service connection for peripheral vascular disease that have been raised by the Veteran's contentions and the record. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); 38 U.S.C.A. § 5103A(d) (West 2002). The Veteran has contended that his peripheral vascular disease is the result of his obesity. Moreover, a September 2005 letter from a private treating physician, Dr. A.R.R.L., diagnoses peripheral vascular insufficiency and indicates that condition is related to exogenous obesity, which in turn is related to anxiety. Because the Veteran is service-connected for generalized anxiety disorder, the record raises the possibility that the Veteran's currently diagnosed peripheral vascular disease was caused or aggravated by his service-connected GAD. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service- connected disease or injury. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The record also raises the possibility that the Veteran's peripheral vascular disease may be etiologically linked to presumed herbicide exposure. The Board acknowledges that the Veteran served in the Republic of Vietnam during the Vietnam Era and it is presumed he was exposed to herbicides while there. 38 C.F.R. §§ 3.307(a)(1), (6)(iii); 3.309(e)(2012). However, peripheral vascular disease is not a listed disease eligible for presumptive service connection. Ischemic heart disease is a presumptive disease under this section, but does not include peripheral manifestations of arteriosclerosis such as peripheral vascular disease. 38 C.F.R. § 3.309(e) (2012): The Board's August 2012 remand requested that the Veteran be scheduled for a VA examination and medical opinion to address the contentions of direct and secondary service connection for peripheral vascular disease. In particular, the Board specified that the examiner was to opine on whether it was as least as likely as not that any current peripheral vascular insufficiency disability had its onset in or was otherwise causally related to his active duty service; or was caused or aggravated by the service-connected psychiatric disability. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). On remand, the September 2012 VA examiner diagnosed peripheral vascular disease and opined that it was less likely than not (less than 50 percent or greater probability) proximately due to or the result of the Veteran's service-connected psychiatric disability. The examiner stated that there was no medical literature showing that anxiety caused peripheral vascular disease and stated that there was no relationship between the two conditions. However, the examiner did not provide the requested opinion on whether the peripheral vascular disease might have been aggravated by the service-connected psychiatric disability. In that regard, the portion of the examination report concerning aggravation on a secondary basis was not completed by the September 2012 VA examiner. Thus, the September 2012 VA examiner's opinion is incomplete as it did not address the possibility of secondary service connection by means of aggravation by a service-connected disability. That is another theory of secondary service connection that must be considered. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. Barr v. Nicholson, 21. Vet. App. 303 (2007). In addition, the September 2012 VA examiner offered an October 2012 addendum opinion that stated that peripheral vascular disease was not caused or related to service, and noting that the claims file was evaluated and there was no evidence of it during service. However, the examiner's opinion on direct service connection is also not adequate. Barr v. Nicholson, 21. Vet. App. 303 (2007). That opinion against direct service connection merely notes that there is an absence of in-service presence of the disease, but the examiner did not provide any rationale for the opinion against a nexus to service. Altogether, the August 2012 VA examiner's opinion and rationale does not adequately comply with the Board's remand directive. A remand by the Board confers on a Veteran the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). Moreover, the Board notes that the examiner did not consider the possibility that the Veteran's peripheral vascular disease might be directly etiologically linked to presumed herbicide exposure. Although the Board's previous remand did not specifically request that consideration, the Veteran has asserted that causation. Thus, on remand, the examiner's findings against direct service connection require further explanation and consideration of the possibility of presumed in-service herbicide exposure. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a medical doctor who has not previously examined him. The examiner must review the claims file and must note that review in the report. All indicated tests and studies, and any other diagnostic procedures deemed necessary, should be conducted. A rationale for all requested opinions must be provided. The examiner is requested to provide the following: (a) Is it as likely as not (50 percent or higher probability) that the Veteran's peripheral vascular disease had its clinical onset during his active service? (b) Is it as likely as not (50 percent or higher probability) that the Veteran's peripheral vascular disease is otherwise related to his active service, including to presumed in-service herbicide exposure? The examiner should presume, for the purposes of this opinion, that the Veteran has been exposed to herbicidal agents during his period of active duty service while serving in the Republic of Vietnam, during the Vietnam Era. (c) Is it as likely as not (50 percent or higher degree of probability) that the Veteran's peripheral vascular disease was caused by another service-connected disability, particularly service-connected generalized anxiety disorder? (d) Is it as likely as not (50 percent or higher degree of probability) that the Veteran's peripheral vascular disease was proximately aggravated (permanently increased in severity beyond the natural progress of the disorder) by another service-connected disability, particularly service-connected generalized anxiety disorder? 2. Then readjudicate the claim in light of any additional evidence. If this claim is not granted to the Veteran's satisfaction, send him a Supplemental SOC and give him an opportunity to respond to it before returning the file to the Board for further appellate consideration of this claim. The appellant 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 the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ Harvey P. Roberts 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) (2012).